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The EU Migration System of Governance: Justice on the Move [1st ed.]
 9783030539962, 9783030539979

Table of contents :
Front Matter ....Pages i-x
The EU Migration System and Global Justice: An Introduction (Sonia Lucarelli)....Pages 1-32
The EU’s Normative Ambivalence and the Migrant Crisis: (In) Actions of (In) Justice (Michela Ceccorulli)....Pages 33-56
The Immigration Policy of The United Kingdom: British Exceptionalism and the Renewed Quest for Control (Antonio Zotti)....Pages 57-88
Migration, Asylum Policy and Global Justice in Greece (Lena Karamanidou)....Pages 89-117
Italy and Migration: Justice on this Side of the Mediterranean (Michela Ceccorulli)....Pages 119-145
France and Migration Between Logistification and Ethical Minimalism (Giorgio Grappi)....Pages 147-171
Positional Insecurity and the Hungarian Migration Policy (Attila Melegh, Anna Vancsó, Dorottya Mendly, Márton Hunyadi)....Pages 173-197
Norway’s Approach to Migration and Asylum as a Non-EU State: Out, But Still In (Espen D. H. Olsen)....Pages 199-224
Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension (Antonio Zotti)....Pages 225-258
The EU Migration System and Global Justice: An Assessment (Enrico Fassi, Sonia Lucarelli)....Pages 259-277
Back Matter ....Pages 279-284

Citation preview

THE EUROPEAN UNION IN INTERNATIONAL AFFAIRS

The EU Migration System of Governance Justice on the Move Edited by Michela Ceccorulli Enrico Fassi Sonia Lucarelli

The European Union in International Affairs

Series Editors Sebastian Oberthür Vrije Universiteit Brussel Brussels, Belgium Knud Erik Jørgensen Aarhus University Aarhus, Denmark Philomena B. Murray University of Melbourne Parkville, Australia Sandra Lavenex University of Geneva Geneva, Switzerland

This Book Series aims to be a central resource for the growing community of scholars and policy-makers who engage with the evolving interface between the EU and international affairs. It provides in-depth, cutting edge and original contributions of world-class research on the EU in international affairs by highlighting new developments, insights, challenges and opportunities. It encompasses analyses of the EU’s international role, as mediated by its own Member States, in international institutions and in its strategic bilateral and regional partnerships. Books in the Series examine evolving EU internal policies that have external implications and the ways in which these are both driven by, and feed back into, international developments. Grounded in Political Science, International Relations, International Political Economy, Law, Sociology and History, the Series reflects a commitment to interdisciplinary scholarship. We welcome book proposals relating to the changing role of the EU in international affairs across policies and the Union’s relations with different parts of the world, as well as relations with states and multilateral institutions. We are interested in research on values and norms, interests and global governance and welcome both theory-informed studies and studies comparing the EU with other major global actors. To submit a proposal, please contact Commissioning Editor Ambra Finotello [email protected]

More information about this series at http://www.palgrave.com/gp/series/14438

Michela Ceccorulli · Enrico Fassi · Sonia Lucarelli Editors

The EU Migration System of Governance Justice on the Move

Editors Michela Ceccorulli University of Bologna Bologna, Italy

Enrico Fassi Catholic University of the Sacred Heart Milan, Italy

Sonia Lucarelli University of Bologna Bologna, Italy

ISSN 2662-5911 ISSN 2662-592X (electronic) The European Union in International Affairs ISBN 978-3-030-53996-2 ISBN 978-3-030-53997-9 (eBook) https://doi.org/10.1007/978-3-030-53997-9 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: Image Source/Getty Images This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

The book is the result of a collective research project conducted in the framework of the Horizon 2020 Research Project GLOBUS—Reconsidering European Contributions to Global Justice (H2020 2016–2020 European Union’s Horizon 2020 research and innovation programme, grant agreement no. 693609; http://www.globus.uio.no/research/). Over the last four years, the project has produced an impressive amount of research, books and articles as well as hugely productive contact occasions between the partners and the academic community. In dealing with the Work Package on Migration, we have greatly benefitted from the work and insight of our consortium partners. In particular, we are extremely indebted to Prof. Helene Sjursen and Prof. Erik O. Eriksen (Arena Centre for European Studies, University of Oslo) for the theoretical backbone of the project; to Ben Tonra (University College Dublin), Thomas Diez (Tübingen University) and Pundy Pillay (Witwatersrand University, Johannesburg) for meaningful comments and input and for sharing with us this stimulating adventure. We are also grateful to the participants of a conference held in 2017 in Bertinoro, in the hills of Romagna, Italy on ‘Justice on the move: Evaluating migration policies in the European space’, for their extremely useful suggestions on previous versions of the chapters in this work: a debt of gratitude to Silvia Bottega, Elisa Piras, Gino Barsella, Marco Borraccetti, Emilio De Capitani and all the contributors to this book for their commitment to the project. A special thanks go to Graham Finlay, Sandro Mezzadra and Ferruccio Pastore for constant v

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reflections and exchanges on the topic and to Arrigo Pallotti, Antonio Fiori, Stefano Bianchini, Cinza Bevitori and Filippo Andreatta for their fundamental contribution to the Work Package. Our most sincere gratitude goes to Carolyn Kadas for her diligent proofreading. And last but not least, heartfelt thanks to Helene Sjursen for having coordinated the project and for the enthusiasm and support demonstrated throughout this work.

Contents

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The EU Migration System and Global Justice: An Introduction Sonia Lucarelli The EU’s Normative Ambivalence and the Migrant Crisis: (In) Actions of (In) Justice Michela Ceccorulli The Immigration Policy of The United Kingdom: British Exceptionalism and the Renewed Quest for Control Antonio Zotti

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Migration, Asylum Policy and Global Justice in Greece Lena Karamanidou

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Italy and Migration: Justice on this Side of the Mediterranean Michela Ceccorulli

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France and Migration Between Logistification and Ethical Minimalism Giorgio Grappi

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Positional Insecurity and the Hungarian Migration Policy Attila Melegh, Anna Vancsó, Dorottya Mendly, and Márton Hunyadi

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Norway’s Approach to Migration and Asylum as a Non-EU State: Out, But Still In Espen D. H. Olsen

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Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension Antonio Zotti

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The EU Migration System and Global Justice: An Assessment Enrico Fassi and Sonia Lucarelli

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Index

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Notes on Contributors

Michela Ceccorulli is Senior Assistant Professor at the University of Bologna. She is also Adjunct Professor at the Dickinson Center for European Studies (Dickinson College) in Bologna. Her research interests lie around migration and the European Union, security and security governance. Enrico Fassi is Assistant Professor of Political Science/International Relations at the Catholic University in Milan. His research focuses on EU democracy promotion, EU neighbourhood, migration and political demography. Giorgio Grappi is Research Fellow at the University of Bologna. His research focuses on logistics, the transformations of the state form and migration, global justice and the contested politics of migration. Márton Hunyadi is a Junior Research Fellow at the Institute for Minority Studies, Centre for Social Sciences, Hungarian Academy of Sciences, Budapest, Hungary. Lena Karamanidou is Research Fellow for the H2020 project RESPOND Multilevel Governance of Mass Migration in Europe and Beyond at Glasgow Caledonian University. Her research focuses on borders and border violence, the European border regime, and asylum and migration policy.

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Sonia Lucarelli is Professor of International Relations at the University of Bologna and Team Leader in the project GLOBUS: Reconsidering European Contributions to Global Justice (2016–2020; Horizon 2020). Her interests revolve around EU foreign policy and external image, European security, European identity and foreign policy, migration and global justice. Attila Melegh is a Sociologist, Senior Researcher at the Demographic Research Institute and Associate Professor at Corvinus University, Budapest. His research focuses on demographic discourses, global social change in the twentieth century and international migration. Dorottya Mendly is Assistant Professor at the Corvinus University of Budapest, Hungary. Espen D. H. Olsen is Associate Professor of Political Science, Oslo Metropolitan University and Senior Researcher, Arena—Centre for European Studies, University of Oslo. His main research interests are citizenship theory, European citizenship, EU crises, migration policy and deliberative democracy. Anna Vancsó is a Ph.D. candidate of Sociology at the Corvinus University of Budapest, Hungary. Antonio Zotti is Research Fellow at the Department of Political Sciences, Catholic University in Milan. His research focuses on the theory of European integration, the EU foreign policy, migration and global justice.

CHAPTER 1

The EU Migration System and Global Justice: An Introduction Sonia Lucarelli

The European Union, Immigration and Global Justice: Why and How to Study It? Migration has shaped the history of Europe.1 Centuries of movements of people within great empires (Roman, Ottoman), flows of populations in the form of invasions or flight from wars or famine, and movements of workers have all contributed to making Europe what it is today.2 1 In this chapter, ‘migration’/ ‘migrant’ is considered as a broad category which encompasses several categories of people reaching the territory of a foreign state to stay for a relatively long time. Hence no distinction is made (unless explicitly) as to the reason for fleeing one’s country (economic or security-related). Moreover, we prefer to adopt the word ‘migration’, with all its human burden, rather than the cognitively more neutral and technical ‘human mobility’. Our choice does not imply that there is no intra-state migration, but we are not focusing attention on this phenomenon. Finally, we focus particularly on irregular migrants and on migrants’ arrival, not on the integration of migrant communities in European societies. 2 For an overview of historical migration to/from Europe, see Livi Bacci (2012).

S. Lucarelli (B) University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_1

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Moreover, Europe’s own emigration has helped to change the face and composition of communities outside Europe, as the anthropologist Erik R. Wolf reminded us in his famous Europe and the People without History (1982). Over time, the social and political consolidation of nation states has not stopped intra-European migration but has significantly changed the perception of borders and citizenship, giving a different social meaning to the category of migrant. Up until the 1970s, several European states continued to be countries of emigration more than immigration.3 But the European integration process (particularly the common market, free movement of people and the establishment of European citizenship), coupled with the growing interconnectedness of European societies, transformed the meaning of peoples’ movement. Europe seemed to have become a post-Westphalian land and to have revised its understanding of borders and state sovereignty (Caporaso 1996; Sperling et al. 2009; Linklater 1996). It has even been able to develop an identity grounded in a ‘temporal othering’ (distinguishing itself from the conflict-prone Europe of the past) rather than in physical othering with respect to entities outside its borders (Wæver 1998)—better described as frontiers, given their unsettled nature. Yet in recent years a nationalistic rhetoric has been rediscovered, which views immigration as a contemporary sin threatening the purity of nations, or which depicts migrants as a potential challenge to the ‘European way of life’. The memory of migration flows from Europe to the rest of the world as well as its role in forging internal transformations seems to have been lost by large portions of European society. In this context, even the intra-European movement of people has begun to be questioned. It is no coincidence that migration was one of the main issues discussed during the 2016 UK campaign for the referendum which led to the country’s decision to withdraw from the EU (so-called Brexit).4 Gradually, European borders have started to be described and enforced as hard borders, marking the limits of communities increasingly in terms of geo-cultural juxtaposition. In other words, Europe seems to be retreating towards a modern understanding of sovereignty, borders and identity. 3 This is particularly the case of Southern European states. For example, between 1946 and 1961 Italy saw the expatriation of more than 4,400,000 citizens, see http://www. orda.it/rizzoli/stella/numeri/emi4.spm. 4 In the case of Brexit, the discussion mainly concerned intra-European migration (see http://www.migrationobservatory.ox.ac.uk/projects/migration-and-brexit/).

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While this process probably started with the transformations which took place after the end of the Cold War, it has been reinforced by the pressure of international terrorism (Diez 2004). But important accelerating factors have also been the economic crisis which erupted in 2008 and the so-called migrant crisis of 2015–2016. Indeed, the rise in the number of arrivals of migrants on the European territory in 2015 (about 1 million according to estimates, over 5 times more than the previous year5 )—at a time when Europe was still recovering from the social strain of a severe economic crisis—triggered a series of reactions on the part of several Member States aimed at stopping the flow of migrants. These included the creation of physical barriers (including real walls), the reintroduction of controls at internal borders in the Schengen area and the ratification of agreements with neighbours (Turkey in first place) aimed at externalizing the control of migrants’ arrival to European coasts. In order to ‘save Schengen’ (to use the telling name of the Commission’s communication—European Commission 2016), the EU adopted a series of measures aimed at reassuring its Member States of the EU’s ability to ‘protect’ its external borders (such as the creation of the Border and Coast Guard and the launch of maritime operations aimed mainly at fighting human smuggling). Furthermore, the EU gradually enhanced the externalization of the management of migration by supporting the drafting of agreements with neighbouring countries by EU Member States (e.g. the Turkey agreement mentioned above, but also the Italy-Libya agreement of February 2017, see European Council 2017). The EU has also developed partnership framework agreements with African countries with the main purpose of stopping migration flows to Europe (one of the most developed is that with Niger) (CINI and Concord Europe 2018). These practices have had a relevant ‘bordering function’, making the EU’s external borders more ‘Europeanized’ and securitized (hence less and less similar to unsettled frontiers ), and by moving southwards to patrol and control the EU’s borders. Various actors have contributed to the functioning and transformation of what we label the ‘EU Migration System of Governance’ (EUMSG): EU institutions, EU Member States, the other states participating in 5 See https://data2.unhcr.org/en/situations/mediterranean. UNHCR reports that the number of refugees in Europe rose by 43% in 2015, the second highest rise worldwide after the Central African region ±79% (https://www.unhcr.org/576408cd7.pdf).

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the Schengen area, some neighbours, and NGOs. Each has struggled to define the internal rules of the game, the degree of burden sharing and relations with third countries. Each has contributed to redefining the very understanding of Europe’s borders and sovereignty as well as the relationship between the latter and migration. Each has endorsed different understandings of what constitutes a ‘just’ migration policy. The European debate in the past few years has been illustrative of this latter point. Research shows that one of the dominant legitimizing narratives used to sustain the practice of limiting migration across borders (even through arbitrary suspensions of the Schengen agreement or refusals to share the burden of arrivals) has been a normative one of a Westphalian nature (D’Amato and Lucarelli 2019). This widespread legitimizing narrative prioritizes the ‘protection’ of states citizens’ in the face of massive arrivals of foreign people who would allegedly destabilize or even directly threaten the domestic society. Against this line of reasoning, which also serves to legitimize measures aimed at differentiating between categories of migrants6 and to limit their access to European countries, NGOs as well as several international organizations have stressed the importance of prioritizing respect for migrants’ rights (see, e.g., OHCHR 2017; Amnesty International 2017). On these grounds, measures undertaken to limit arrivals to Europe such as the externalization of EU migration policy to third countries whose credentials in terms of respect for human rights are not strong to say the least, have been subject to severe criticism. The 2016 EU-Turkey deal to stop flows through the so-called Balkan route was blamed particularly for its negative consequences on migrants’ human rights (Council of Europe 2016). Equally criticized have been the open violations of human rights in several EU Member States (Human Rights Watch 2018). The academic argument in favour of ‘open borders’ (Carens 1987, 2013; Block 1998; Clemens 2011) has also started to be debated in the media (The Economist 2017) and has been used in the political debate: ‘Inevitably - claimed 6 In an attempt to keep this discussion within the boundaries of legal orders, a great effort has been made in recent years to classify migrants in categories subject to different treatment (legal/illegal migrants, temporary workers, economic migrants, asylum seekers, refugees, people in clear need of international protection, etc.), giving origin to distinctions which are frequently blurred, yet have heavy legal consequences for the migrants. On the ethical implication of labelling and categorizing in the area of migration, see Fassi and Lucarelli (2017), particularly Ceccorulli (2017).

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UK shadow chancellor John McDonnell - [… t]he movement of peoples across the globe will mean that borders are almost going to become irrelevant by the end of this century, so we should be preparing for that and explaining why people move’ (John McDonnell, quoted in BBC 2016). To support the argument that we have a moral duty to help migrants and allow them in, a narrative frequently endorsed is the humanitarian one. Such a narrative, however, has been criticized for ‘inadvertently producing voiceless and agency-less victims ’ (Sandro Mezzadra, quoted by Ceccorulli 2019) and for ‘shifting our attention from development to emergency assistance, [also] establishing a moral geography of the world’ (Musarò 2011, 1). These critics call for greater attention to migrants’ subjectivity (Mezzadra 2015; Fassin 2011; Marvakis 2012), which can be disregarded even in the case of formal compliance with legislation on human rights. In other words, the migration crisis has exposed a number of normative and ethical issues connected to the current management of migration within the EUMSG: to what extent can such a system be reasonably deemed ‘just’? Just for whom? Does the EU’s management of migration live up to the principles of global justice? And which understanding of global justice? Ultimately, what are the political and normative implications for the EU as a sui generis polity which has long been described as a normative power (Manners 2002), if not an ethical power (Aggestam 2008) of a post-Westphalian nature?7 This book aims to explore these issues by analysing the EU and Member States’ norms and practices on migration. In particular, the rationale for this book is threefold: first, it emphasizes that the management of migration and asylum in the EU approximates a governance system in which both Member States and EU institutions have a role which deserves to be studied in its own right. In line with this rationale, the first aim of this book is to explore the norms, policies and broader practices that the EU and a set of states have developed over time in order to cope with arrivals of migrants. This analysis is fundamental in order to grasp the political, institutional and cultural context nurturing migration policies in these Member States, their contribution to the overall functioning of the EUMSG and the influence the latter has on the transformation of their domestic policies and legislation on the topic. 7 For an overview of the debate on the EU’s distinctiveness thesis see: Whitman (2011). Critical voices include Sjursen (2006), Diez (2005).

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Second, the book underscores migration governance as a complex effort to identify and weigh different justice claims depending on who is perceived to be the recipient of rights (the EU, the national community, human beings, the subjective individual) and on related moral responsibilities there attached. Accordingly, the second aim of the book is to add a largely unexplored dimension to the analysis of the functioning of the EUMSG by looking at EU and Member States’ migration policies from the perspective of justice. Third, by acknowledging the practices and discourses on migration and borders in the EU and exploring the relationship between different justice claims in and by the actors of the EUMSG, we aim to evaluate the implications these have on the EU’s international actorness. The goal of this chapter is to set the stage for this analysis. To achieve this aim, the chapter unfolds as follows: it first introduces the normative challenges posed by growing global interconnectedness and explains the relationship between globalization, global justice and migration. It then explores the relationship between state borders, migration and rights and eventually introduces the three different perspectives we will apply to global political justice in the area of migration. Subsequently, it addresses the characteristics of the EUMSG and explains this volume’s contribution to the analysis of such a system. Finally, the chapter explains the organization of the volume.

Globalisation, Global Justice and Migration Since the 1970s world interconnectedness has risen significantly, globalization has accelerated and elements of global political and economic governance have been developed (Ferguson et al. 2011).8 The complex set of processes that we label globalization as well as the instances of global governance enacted have contributed to significant improvements in human conditions worldwide. Empirical research shows that (economic, social and political) globalization has spurred economic growth, promoted gender equality and improved human rights, but it has also raised inequality within and among states (Potrafke 2015). According to the Human Development Report 2016, ‘the top 1 percent of global wealth distribution holds 46 percent of the world’s wealth’ (5). One 8 KOF Globalization Index—https://www.kof.ethz.ch/en/forecasts-and-indicators/ind icators/kof-globalisation-index.html

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person out of nine in the world is hungry and one out of three is malnourished; group-based disadvantages and discrimination are widespread and many of ‘the 65 million forcibly displaced people, face extreme conditions’ (UNDP 2016, 5). In this respect, birth plays a relevant role in the opportunity to belong to the world’s better off, or not: a Norwegian citizen (first position in the Human development index—HDI) has a life expectancy of 81.7 years, an average education of 12.7 years in school, and a GDP per capita of about US$67,600; a citizen of the Central African Republic (position 188 in the HDI) has a life expectancy of 51.5 years, an average of 4.2 years of schooling and a GDP per capita of about US$587. Equally, in these as in other countries, access to political and civil rights varies immensely. All this occurs in a deeply interconnected world in which the decisions of a single powerful individual can strongly affect the living conditions of people in faraway countries. The observation of all these inequalities and limitations to human freedom and self-determination have nourished a lively debate on ‘global justice’. The idea of justice, explored for centuries with reference to the state, and more recently placed at the core of the normative theory by John Rawls’ A Theory of Justice (1971), then started to be applied to the globe. In The Law of Peoples (1993), Rawls developed a liberal theory of global justice in which ‘the peoples’ adopt liberal-democratic principles within their own constituencies (or at least respect basic human rights and do not behave aggressively towards other peoples) and follow principles of conduct towards other peoples: these include respecting the freedom and independence of peoples, respect for treaties, the equality of peoples, nonintervention, the right to self-determination, respect of human rights, restrictions on warfare, and the duty to assist people who—due to disadvantageous conditions—cannot be part of the ‘society of peoples’. Despite the many criticisms of Rawls’ contribution to theorizing on global justice, one aspect of his thought is important to underline: the need to take into account, when dealing with global justice, both international and intranational relations. As Pogge points out in his introduction to a collection of seminal contributions to global justice, the globalization of world politics ‘render[s] obsolete the sharp distinction between intranational and international relations [as if they were] two separate domains of moral theorizing’ (Pogge 2008, xvii). In fact, it would be highly problematic to limit a reflection on global justice exclusively to the level of international relations, even more if

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they are understood simply as intergovernmental relations. It is indisputable that global justice behoves us to consider justice at different levels (domestic, intergovernmental, transnational and global) and in relation to different actors (such as states, international organizations, individuals, national and transnational groups). Can we consider just, an international system in which stateless persons have basically no rights? Is a system just, in which, in the name of protecting persecuted civilians, military intervention follows which destroys the living conditions of those still living, with the intervening states not assuming responsibility for socio-political and material reconstruction? Is a system just, in which states can discriminate among causes of ‘clear need’ of refugees, attributing different rights to those risking death from famine and those risking death due to political persecution? Indeed, migration is a particularly privileged perspective from which to study global justice: it is a global phenomenon which involves people, states, and international organizations. Equally, it is a phenomenon which puts into direct confrontation individual human beings’ claims for legitimate justice with those of sovereign states. The international norms and rules in this area are very thin and pertain primarily to conditions for asylum. But migrants and states alike are subject to respect for broader human rights and norms safeguarding states’ sovereignty. In other words, migration is at the crossroads of different worlds of justice, and the management of migration is a battleground with claims for justice that are difficult to reconcile.

Migration, Borders and Rights: Ethical Perspectives Migration is as old as humankind on earth,9 but its social meaning has historically changed. Whether it be in response to basic human needs (food, shelter, …) or to more elaborated social needs (e.g. improved living conditions), humans have always moved to and resettled in geographic areas other than where they were born. This has contributed to the diffusion of the human species on the planet, made possible encounters that rendered its DNA stronger and more resilient, and shaped the social and

9 For an overview of migration history, Gibney and Hansen (2005), Livi Bacci (2012), Castles et al. (2014).

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political history of human communities. Yet, with the creation of the first settled communities, population movements have begun to come to terms with potential clashes between moving people and stationary communities. The more the physical space has become densely covered by organized political communities, the more mobility has become a potentially contentious issue. However, it was with the consolidation of the state as polity of reference that the borders of the political community started to be perceived and enacted as ‘solid’. Although historically subject to changes, state borders were never as flexible as empires’ frontiers. Moreover, more than before, a state’s borders designed the external margin of the area of rights: they were the line which separated state’s citizens—subject to internal rules, owners of rights and duties and recipients of protection—from the external world. In other words, gradually ‘frontiers’ became ‘boundaries’. In the jus publicum europaeum, the borders of justice coincided with the borders of legality and hence with the borders of state sovereignty (Schmitt 1950). In this system of states, individuals were granted rights as members of a community rather than human beings; domestic legal systems and the rules governing inter-state relations determined the laws affecting their lives. With the development of elements of cosmopolitan law, beyond domestic and international (interstate) law, individuals became bearers of rights (and duties) on their own, regardless of their community(ies) of belonging. This created the conditions for looking at migrants not only as people attempting to pass the border of rights of a closed community, but as individuals with rights and duties on their own. Yet they remain at the border of competing understandings of justice: one which favours the rights (and concerns) of the hosting community, and one which prioritizes the rights of migrants as human beings, if not as individuals, each with specific subjective needs. Such tension is at the core of the literature on the ethics of migration.10 A relatively recent branch of philosophical reflection, the debate on the ethics of migration has been dominated by normative theory (‘what ought to be’) more than by the exploration of the justice claims of concrete opposing factions in the debate on immigration in political communities at the domestic, international and global level. In other words, the debate has been dominated by an attempt to reply to questions such as: shall communities enforce a policy of closed borders? Under which conditions 10 The field of enquiry is now wide and growing, for an overview, Carens (2013), Fine and Ypi (2016), Gibney (2004), Greblo (2015), Miller (2016), Sager (2016).

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are closed borders just? Do we have a duty to save migrants at sea? Which criteria for selective immigration are just? Is there a universal right to migrate? What we propose here is to use this debate to explore what are the claims for justice legitimizing actual decisions within the EUMSG. We explore the link between broad perspectives on justice and specific ethical positions in relation to the actual policy of migration. In order to do so, we identify three positions on global political justice and their equivalent in the area of migration.11 Justice as Non-domination: The Responsible Westphalian Perspective The first position is justice as non-domination. This refers to a situation of non-subjugation, control or interference of an actor by any other actor. According to this view, the integrity and sovereignty of states are respected together with their system of protecting rights (Eriksen 2016, 11; Pettit 2010). Applied to the field of migration, non-domination is intended in relation to state-like entities or political actors such as the EU, its Member States and third countries and presupposes fair and equally participated relations. According to this perspective, a state’s sovereignty is a value to be respected. This implies in the first place a state’s duty to protect its own citizens. In the second place, it implies respect for other states’ sovereignty. The logical consequence of this position is a state’s right (and duty) to control the community’s borders, decide on who has the right to pass such borders and who is entitled to citizenship. Selective immigration (if not closed borders) would respond to the idea that a state is a community of people who have special bonds of loyalty and shared affiliation (Miller 2005a); such bonds provide the resources of meaning indispensable for social cohesion (Habermas 1994). The first contributor to the thesis of the legitimacy of imposing selective migration (‘closed borders’) is Michael Walzer. In his widely read Spheres of Justice (1983), moving from a moderate communitarian position, Walzer supports the idea that, in order to achieve ‘a society free of domination’ (1983, xiii), each community needs to protect its integrity by

11 The three categories are those proposed in the context of the research project Globus (Reconsidering European Contributions to Global Justice), of which this book is an offspring. More information in the preface to the volume.

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deciding on the conditions for admission and exclusion to the community itself. These conditions should function to maintain cohesion within the community. Hence, they represent the conditions for self-definition of the political system. In other words, the community’s capacity to enact its borders of inclusion is constitutive of the community itself and is a precondition for fulfilling a distributive criterion of justice.12 This is not the simple, mechanical recognition of the fact that bodies (be they material, political or social) need to be delimited by borders, but the recognition that these borders identify and protect a community’s peculiar culture (Walzer 1981, 1983). This responds to the individuals’ right to form a distinct and stable group of people ‘committed to dividing, exchanging and sharing, first of all among themselves’ (Walzer 1981, 1). The community in this view resembles a club that has the right to protect its cultural homogeneity (Walzer 1981). Nonetheless, states are bound to help ‘strangers’ who are destitute, persecuted or stateless. This requirement varies depending on whether the state is somehow responsible for their movement, on the ideological or ethnic background of the migrants (which should be close to that of the state community), and whether they have alternatives or not (Walzer 1981; see also Miller 2005a). In the most extreme versions of this position, as with Wellman, ‘legitimate states are entitled to reject all potential immigrants, even those desperately seeking asylum from corrupt governments’ (2008, 141). In other words, communities have a right to defend what in international relations would be labelled their ‘ontological security’, the security of the most profound self.13 It is clear that this position assumes a typical ideal representation of the state as the locus of

12 ‘Principles of distributive justice are […] best thought of as providing moral guid-

ance for the political processes and structures that affect the distribution of benefits and burdens in societies, and any principles which do offer this kind of moral guidance on distribution, regardless of the terminology they employ, should be considered principles of distributive justice’ (Stanford Encyclopedia of Philosophy 1996 [revised 2017]), https:// plato.stanford.edu/entries/justice-distributive/. 13 Antony Giddens (1991), defined ontological security as a ‘person’s fundamental sense

of safety in the world [which] includes a basic trust of other people [in order to] maintain a sense of psychological well-being and avoid existential anxiety’ (1991, 38–39). J. Mitzen (2006), B. J. Steele (2008) and others have developed and applied the concept to international relations, mainly translating the reflection on the individual to the state level.

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a homogeneous community, with a shared national identity which guarantees fundamental social bounds. The more moderate versions of this position—of which David Miller’s ‘liberal nationalism’ is possibly the best example—recognizes states’ rights to enact selective immigration, prioritizing the community’s collective interest over immigrants’ particular interest (Miller 2005b, 2008, 375). In fact, according to Miller, national borders are boundaries that legitimately protect the national community and because of this, have an ethical significance. However, clarifies Miller, ‘although national values and national priorities can be reasonably invoked when deciding how many to take over any given period of time, when it comes to selecting among the applicants, only “neutral” criteria can legitimately be used’ (Miller 2008, 388). The latter aspect is particularly relevant and points to the most troubling aspect of conciliation between a liberal view of politics and the claim that the state has a right (and duty) to close its borders. The argument here is that even in the case of liberal democracies, characterized by internal pluralism and differences (political and increasingly also cultural and ethnic),14 policies of selective immigration are legitimate tools to guarantee ‘cultural stability’ (Perry 1995, 105) and avoid excessive alterations of the socio-cultural fabric (for a review, Stanford Encyclopedia of Philosophy 2015; Greblo 2015, 24–25). Selective immigration, if not closed borders, are also defended in the name of other reasons such as the right to self-determination of political communities and individuals’ freedom of association (Wellman 2011); the need to safeguard the welfare state and avoid the economic costs of immigration (cf. Greblo 2015, 57–64); the need to protect the state and its citizens against possible terrorist or criminal infiltrations brought on by immigration, an argument frequently used also in the public debate and part of the broad process of securitization and criminalization of migration (Huysmans 2006; Guild 2009; Atak and Simeon 2018). Next to these ‘internal’ reasons for considering a policy of selective immigration just, a further argument is made by the supporters of a non-domination

14 In liberal thought, traditionally, it is the individual who is the beholder of rights.

However, liberal thinkers reflecting on liberalism in multicultural societies have explored the conditions under which groups are also beholders of rights. Kymlicka, for instance, focuses on the conditions for a liberal multicultural society (1995). Key is his identification of thresholds of liberalism which could not be dismissed in the name of tolerance for different cultures. On this aspect, see also Cerutti (2017, 30)‚ Lucarelli (2020, Chapter 7).

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approach to justice: a policy of open borders not only would not help the worst off, but would also damage the countries of origin by draining human resources (Miller 2005a). Given the arguments used and here briefly summarized, it is clear that claiming to adopt a policy of selective immigration does not necessarily imply having a nationalistic perspective on politics, and may also be justified on the basis of liberal views. For instance, a selective approach to migration could be justified on the basis of the argument that liberal societies can grant basic rights only to a limited number of migrants; if they accept more and do not grant them decent living conditions, they fail to uphold their own principles (see, e.g., Ruhs 2013). However, in this case, the liberal-democratic state would have to compensate for such selective policies by investing at the international and global level to overcome the conditions of inequality which cause migration in the first place (Greblo 2015, 25). Moreover, the liberal state would also have to consider the special position of those whose ‘vital interest [in life] cannot be secured in the country where [they] currently reside’ (Miller 2005a, 196)—i.e. those entitled to seek asylum.15 , but also the global poor (Miller 2007). In this perspective, a just migration policy also includes taking on historical responsibilities (Miller 2007).16 Hence a purely Westphalian principle which puts national citizens first without taking on global responsibilities would not satisfy the criterion of global justice as non-domination. Justice as Impartiality: The Cosmopolitan Perspective The second stance on global justice—impartiality—adopts a cosmopolitan perspective that puts individuals at centre stage: human

15 In reality, some scholars claim that it is possible to respond to justice claims of the persecuted ones by helping them in their country of origin or offering limited temporary protection (Wellman 2011, 123) As we will see in the rest of the book, this argument has entered the public debate and has even had an impact on the 2016 EU Commission proposal for reform of the asylum system which has emphasized the non-permanent nature of refugee status in the EU by underlining the need for repeated checks with respect to protection needs (Ceccorulli 2018). 16 This issue is highly controversial, as it could imply considering most migration from former colonies a result of local and global inequalities created by the former colonizers and would imply considering a generous immigration policy as a form of compensation for past wrongs (cf. Collste 2015, Ch. 12).

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beings are the ultimate units of moral concern. This conception of justice is strongly related to the concept of non-discrimination, equal basic rights and liberties and human dignity (Eriksen 2016, 14–15). As evaluated in the field of migration, impartiality would imply the acceptable treatment of migrants and asylum seekers mainly according to leading international (and EU) laws and conventions, on non-discrimination with respect to (EU or Member State) nationals, and also on the impartial treatment of persons in need of protection. Coherent with this perspective on justice is the position of the supporters of open borders for migrants. There are at least four ethical grounds on the basis of which the thesis of open borders has been supported: libertarian (there is a right to migrate), utilitarian (promotion of well-being), democratic (political coercion cannot be legitimate unless it is under the democratic control of all those coerced) and egalitarian (everyone would have equal opportunities) (e.g. Carens 1987; Stanford Encyclopedia of Philosophy 2015). Despite the difference in argumentation, they all come to the conclusion that a just migration regime would entail more open borders for migrants. Clearly, this challenges the Westphalian understanding of hard borders as a necessary requirement of state sovereignty. Borders in the Westphalian world of states have always been treated asymmetrically, acknowledging the right/freedom to exit as legitimate and to be protected, while denying or limiting the right to enter. A country that limits the right of exit would be considered tyrannical, while the same would not be said of a country forbidding entry to foreigners. Yet according to Joseph Carens, one of the leading scholars adopting this position (Carens 1992), ‘[t]he current restrictions on immigration in Western democracies […] are not justifiable. Like feudal barriers to mobility, they protect unjust privilege. […] What is not really compatible with the idea of equal moral worth is the exclusion of those who want to join. If people want to sign the social contract, they should be permitted to do so’ (1987, 270; see also 2013). Also moving from a cosmopolitan perspective (yet not denying the relevance of borders for state democracy), Seyla Benhabib (2004) denounces the use of the ‘old map’ of state sovereignty to search for guidance in navigating the new waters of transnational migrations and global interdependence: state sovereignty and borders need to be re-thought. One of the most powerful challenges to limitations on immigration regards the immorality of the so-called lottery of birth (Schachar 2009): the fact that people acquire citizenship—and hence rights and living

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conditions—on the basis of something (birth) over which they have no control. Moreover, freedom of movement across borders can also be considered a form of compensation for social, political and economic inequality (Carens 1992). Indeed, according to this position, freedom to move is both a person’s basic right and a more instrumental prerequisite to achieving other goals (e.g. autonomy, freedom from want and need) (Bader 2005, 338). Migration can also represent a form of redistributive justice at the global level, even if the net impact on the countries of origin is controversial (Oberman 2011). Having said this, the largest majority sharing the ‘open borders’ position recognizes that there are limits to freedom of movement. The cosmopolitan perspective on migration, then, ranges from a more extreme position that considers migration a fundamental human right—hence calling for complete freedom to cross borders—to a more moderate position that considers the right to move, but not the duty to welcome every migrant, therefore calling for more open borders, rather than complete open borders. By adopting a moderate understanding of the cosmopolitan perspective on migration, as complacent with the requirement of ‘Justice as Impartiality’, we would consider the management of migration across borders as ‘just’ if it respects the human rights of migrants and the principle of equal treatment of persons in need of protection; we would also expect a policy of ‘porous’ borders as proposed by Benhabib: one that allows for movement of people, and yet also respects the fact that the world is organized in states, each with public authorities responsible for the territory of the settled population. Moreover, we would also expect a policy which engages in attempts to develop global governance of migration aimed at promoting human development and human security, which provides safe avenues of mobility and expands the spectrum of those who have a right to protection to people escaping famine or, for instance, the negative effects of climate change. Justice as Mutual Recognition: The Concrete Other Perspective Probably the most demanding of the three, justice as mutual recognition acknowledges the relevance of each subject’s (individual, group or polity) voice in being heard and requests the active participation of subjects in governing the phenomena affecting them. In the case of

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migration, mutual recognition would not only imply taking into account the personal stories of the persons concerned and their vulnerable statuses, but would also consider them as agents and not simply spectators in the governance of migration. Rather than adopting a governmental paternalistic attitude, these critics affirm, we would need to pay attention to migrants’ subjectivity and the autonomy (Mezzadra 2015; Fassin 2011; De Genova 2017). Hence, even where there is no blatant violation of a migrant’s human rights, there may be a violation of his/her right to be recognized in his/her own specific subjectivity and needs. In the case of asylum seekers, the legal requirement that each request should be processed and evaluated in its own right seems to comply with a similar approach; however, some of the measures undertaken to cope with the socalled migration crisis in Europe have severely challenged (and frequently violated) such a requirement.17 As discussed by Eriksen, that ‘which brings justice as mutual recognition to the fore is that -…- there are structural forms of injustice which extend beyond states as well as injustices which fly under the radar of formal justice’ (Eriksen 2016, 19). This implies the need to consider who is excluded when a particular agent defines what is just, and whose voice is not considered in the process of defining formal procedures. A similar conception leads to the recognition that different groups have different views and thus need to be considered in their specificity for a deliberation or policy to be considered ‘just’ under this stance. The classical example is that of specific cultural or national groups. However, this conception runs the risk of crystallizing identities, mirroring the limits of Westphalian perspectives, which tend to objectivize national communities, applying identities to migrants that they would not necessarily consider as defining their subjectivity. But the concept of mutual recognition also encompasses a wider meaning, which includes the need to think of justice in relation to migration beyond Westphalian narratives and the cosmopolitan perspective. One way to approach this issue is to consider the ‘other spheres of justice’ 17 For instance, the creation of the hotspot system, set up in Italy and Greece to manage high flows of arrivals and avoid secondary movements (to other EU states) during the migrant crisis led to the adoption of pre-selection procedures for asylum seekers (based on nationality) leading to discriminating procedures (CARITAS EU 2016; Danish Refugee Council 2017; Casolari 2015; Ceccorulli and Lucarelli 2017). All this despite the fact that the EU has one of the most advanced systems of asylum, recognising specific needs beyond those envisaged in the Geneva conventions (Gil-Bazo 2006).

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(Balibar et al. 2012). Namely, what happens at the borders of the various conceptions, ideas and forms of justice, taking into account the border itself as a space of contentious politics. Following a similar conception of ‘borderline existence’ of justice, we can consider justice in its dynamic moment, that is, in relation to the processes of subjectivation that give rise to the justice-seeking subject. Balibar, Mezzadra and Samaddar invite us to think about justice as what is left outside the reach of existing theories of justice, or at the margins. In this way, they advance the possibility of thinking about migration in relation to strategies of differential inclusion which produce marginality as ‘the result of specific struggles and tense constellations of power and resistance’, where migrants appear not only as marginal subjects, but as justice-seeking subjects constantly challenging the normative and political order, and as a continuous test for democracy (ibid., 6). A similar conception of justice would mean adopting an open definition of what is ‘just’. Rights infringements that would normally be considered accidental deficiencies of migration regimes would appear in this way more as elements of ‘structural injustice’ (Young 2003), as the result of structural institutional dynamics that produce migration as marginality. A wider conception of mutual recognition thus poses the challenge of broadening ethics concerns to include a level of political responsibility that considers migration a ‘total social fact’ (Sayad 1999) and migrants as political subjects on their own. From this perspective, the cosmopolitan stance is not so much one that stresses an open border option over closed borders, but one that overcomes methodological nationalism in the study of migration and demystifies categories, recognizing their very definition as a contentious field, and the result of struggles in which migrants play an active role (Wimmer and Shiller 2002; De Genova et al. 2018). Migrants appear here both as subjects with specific needs, and as subjects who with their movements and presence, constantly expose the contradictions of political systems and migration systems of governance—such as the one centred on the EU—to challenges and changes. ∗ ∗ ∗ Each perspective on justice entails different moral obligations and justice prescriptions. The obligations towards one’s own community might well conflict with obligations towards generic others and/or

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specific others. Tensions are inevitable, and sensitive to the shared understanding of what binds the host community together; the more citizenship is defined according to ethno-national criteria, the closer the community and the less inclined to take into due consideration the negative implications of its restrictive policies on migrants. But also, the greater the sense of ontological insecurity associated with migration, the more the Westphalian justice criterion is made to prevail over the other two and might eventually lead to policies that in fact violate the principle of non-domination, as in the case of quasi-imposition of border controls on third countries. The aim of this book is to explore how the EUMSG functions through the lenses of the three worldviews of justice presented here. This should allow us to highlight the conflicting justice claims occurring in the actual management of migration, as well as to contribute with empirical investigation to a research field (that of the ethics of migration) which frequently lacks empirical contributions. Now that we have introduced the criteria to assess just behaviour in the area of migration, we shall better introduce the ‘actor’ to be analysed: the EU Migration System of Governance.

The (Evolving) EU Migration System of Governance The EU has been frequently described as an evolving system of governance (e.g. Marks and Hooghe 1996, 2004; Caviedes and Maas 2016) which is itself part of wider systems of governance. For instance, in the area of security governance in Europe, the EU is one actor within a wider European system of security governance involving the EU, the North Atlantic Treaty Organization (NATO), the Organization for Security and Cooperation in Europe (OSCE), and states as well as private security actors (Kirchner and Sperling 2007; Sperling 2014; Cottey 2014). In general, a ‘governance approach’ looks at the vertical and horizontal interactions between different actors, serving as an organizational framework, in order to explain how public goods are produced (Webber 2014, 18; cf. Krahmann 2003). ‘Governance’ is distinct from ‘government’ in that it points to a lack of hierarchy, centralization and control, while stressing the existence of multiple forms of regulation involving a wide range of actors to solve specific problems or provide a common good (Enderlein et al. 2010, 80; Webber 2014). The concept is not new in

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international relations (Rosenau 1992; Smouts 1998) or in EU studies, given the hybrid nature of the EU that for many years has been associated with the concept of multilevel governance (Marks and Hooghe 1996). Migration policy in the EU, moreover, seems particularly suited to an analysis through the conceptual lens of ‘governance’: there is no single locus of government, no fixed hierarchy of competences among the different actors involved (EU institutions and Member States in the first place) and what is more, the span of competences ranges across different areas of migration (cf. Caviedes 2016). There is no central control on the side of EU institutions but rather a decentralized system of control at EU and Member State levels. Eventually, there are multiple forms of regulation that reflect the degree of competences that the states retain in this area as well as the existence of elements of a truly European form of governance, as in the area of asylum. Such a complex set of regulations and competences has evolved over time. While the Rome Treaty (signed 1957) did not explicitly attribute any role to the European Economic Community, the Single European Act (1986) activated a process that led to the creation of coordination groupings, mostly in the spheres of justice and police,18 but gradually also in the area of immigration.19 With the Schengen agreement (1985) and the abolishment of border controls among the signatories,20 enhanced control of external borders and a collective policy on migration became all the more necessary. This led to the first steps towards the harmonization of national procedures for visas (e.g. a common list of countries, 90-day visa length), the creation of a shared system of information, antismuggling norms and enhanced judiciary cooperation. However, states

18 This is the case of the MAG (Mutual Assistance Group, in force since 1972), the Trevi group (established in 1975 to coordinate efforts against terrorism, but whose activities gradually included broader police cooperation), the PWGOT (Police Working Group on Terrorism, 1979), and CELAD (Comité Européen de Lutte Anti-Drogue, 1989). 19 This is the case of the Ad Hoc Group on Immigration and the Centre for Information, Discussion and Exchange on the Crossing of Borders and Immigration—CIDEC. 20 The Schengen Convention—implementing the Schengen Agreement signed in 1985—entered into force in 1995 in seven states: in 1995 in France, Germany, Belgium, Luxembourg, the Netherlands, Spain and Portugal. Others soon joined: Italy (1987), Austria (1988), Greece (2000), Denmark, Sweden, Iceland and Norway (2001); all new members of the 2004 enlargement but Cyprus (between 2007 and 2008); Switzerland (2008–2009); Lichtenstein (2011). Pending at the time of writing entry into force in Romania, Bulgaria, Croatia and Cyprus.

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retained much of their sovereignty, particularly as regards conditions for work permits, family reunification and long-stay visas. The Treaty of the European Union (1992) clustered immigration, asylum and judiciary cooperation within the so-called third pillar of the Maastricht architecture. Subsequently, several proposals for enhancing harmonization among the Member States on the basis of the Maastricht Treaty failed to be approved. A leap forward occurred with the Amsterdam Treaty (signed in 1997), in which the Union set itself the objective of supporting the internal area of freedom, security and justice, with appropriate measures to grant ‘respect to external border controls, asylum, immigration and the prevention and combating of crime’ (Article B, TA). Moreover, with the Amsterdam Treaty Member States agreed to gradually transfer from the third to the first pillar issues relative to immigration. In this way, immigration was to become a shared competence between the European Union and its Member States. Moreover, the Treaty absorbed the Schengen Convention (albeit allowing opt outs). The division of competences between the EU and Member States is today set out in the Treaty on the Functioning of the European Union (TFEU). The Treaty asserts that the EU ‘shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals ’ (Article 67.2, emphasis added). Moreover, this common policy should prevent illegal immigration and trafficking in human beings (Article 79). This implies that the Union can adopt measures regarding conditions of entry and residence, the definition of the rights of immigrants legally resident in a Member State, the removal and repatriation of illegal migrants, and the fight against human trafficking. Hence EU competences look quite broad. However, at the same time, it is the Member States that have the competence to determine volumes of admission of third-country nationals. Decisions in the area of both regular and irregular migration are taken through the ordinary co-decision procedure, involving both the European Parliament and the European Council. Majority voting determines decisions on regular immigration and new legal bases for integration measures. However, provisional measures for the benefit of a Member State(s) affected by a sudden inflow of arrivals can be taken by the Council alone (on proposal from the Commission) after consulting the European Parliament (Article 78(3) TFEU)—a procedure that was adopted for the first time during the so-called migrant crisis of 2015

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regarding the two relocation plans for the redistribution of asylum seekers among the Member States for the benefit of Italy and Greece. The Charter of Fundamental Rights of the European Union (art 18) recognizes the right to asylum, in accordance with the Geneva Convention on the Status of Refugees (1951) and the following Protocol (1967). Furthermore, the Lisbon Treaty identifies for the EU the objectives of developing a common policy on asylum, subsidiary protection and temporary protection, and re-states the importance of ensuring compliance with the principle of non-refoulement (no return to countries where the subject’s life and freedom are threatened due to his/her race, religion, nationality, membership of a particular social group and political opinions, Geneva Convention, art. 33). More in detail, the treaty states that the EU should aim at developing uniform statuses of asylum and international protection, valid throughout the Union, as well as common procedures to grant such statuses.21 What is described in the Lisbon Treaty, therefore, more than the state-of-the-art of the legal provisions regulating migration and asylum in the EU, is a programme for action, which in the coming years aims to develop a full-fledged unitary EU migration and asylum system. The current situation, on the contrary, is still one of significant differences with respect to the legal provisions and practices adopted by Member States, and therefore the communitarization of this policy field is an ongoing process. As the chapter by Michela Ceccorulli explains (2021a), in recent years multiple pressures have characterized developments in this area and proposals for enhanced communitarization by the Commission have aimed at responding not only to the challenge posed by high numbers of arrivals, but also to the possible collapse of the Schengen system (which, as seen, is inherently linked to efficient control of external borders). At the same time, Member States have made wide and frequent use of their substantial national prerogatives to cope with a phenomenon which has been increasingly targeted as a threat by national populist movements.

21 It also sets out the aim of developing a series of common instruments such as a common system of temporary protection, criteria for determining which Member State is responsible for considering an application for international protection (Dublin Regulation), standards concerning the conditions for the reception of applications, etc. (Article 78, TFEU).

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This implies that in this area (as well as in many others) the EU is a process as well as an actor. Hence its performance is a result of institutional constraints and concerns of stakeholders (EU institutions and Member States in the first place) regarding possible future implications and repercussions of EU actions in this area, including on intra-European solidarity at large. Hence, in order to understand the details and inner logic of the EU’s functioning in the area of migration and asylum we cannot avoid combining an analysis of the EU level with a focus on the Member States. For this reason, in this book EU policies and regulations are conceived of as part of a more comprehensive ‘EU Migration System of Governance’ involving non-hierarchically ordered and non-exclusive levels of government. Of the several actors at play (which also include transnational institutions and civil society) we choose here to focus on the EU and Member States. In fact the Union as well as its Member States remain identifiable to a considerable extent as distinct actors in their own right. At the same time though, the Union and its Member States are inextricably embedded in a complex but not fully overlapping net of spheres (the single market, the Schengen area—which does not include all EU Member States but includes non-EU states with formal links to the EU such as Norway—and the euro-zone). Focusing on the EUMSG implies looking not only at the EU level, but also at a sample of states that are members of the EU and Schengen (in this book, France, Greece, Hungary, Italy), as well as (at the time) members of the EU only (the United Kingdom, as it was until Brexit) or of Schengen only (Norway), which contribute to the EU’s overall performance in the area of asylum and migration. The intrinsic assumption is that the political, institutional and cultural context nurturing these states is relevant to understanding both the challenges and the potential reach of the EU’s governance of the migration phenomenon (Geddes and Scholten 2016). We suggest looking at the system of governance in the area of migration and asylum in Europe through the lenses of the literature on international relations governance instead of using the multilevel governance literature developed specifically to study the EU. In fact, we believe that the latter tends to focus attention particularly on the role of supranational or transnational agents (Hooghe and Marks 2001). On the contrary, what we would like to emphasize is the specific relevance of states’ priorities and ethical assessments in the current overall functioning of the EUMSG. States’ responses to the so-called 2015 migrant

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crisis have been the main determinant of the EU’s overall reaction. The latter has been largely dictated by the imperative to combine at least three competing sets of duties: those to the vulnerable third-country citizens aiming to reach Europe; those to the legitimate (or less legitimate) concerns of EU citizens and their governments; and that of protecting the very achievements of the integration process from the possible backlashes of the erosion of intra EU solidarity. Eventually, to use two categories proposed by Mark Webber (2014), interaction between states and with the EU has affected the overall governance of migration both in substantive (how things are done) and normative terms (how solutions are perceived to be legitimate and coherent with a polity’s core values). Hence, we claim that in order to understand the EUMSG we need to unpack the system, explore some of its most fundamental components and then recompose the package and attempt to draw some conclusions about the main constraints—at both the EU and state level—on an efficient and normatively coherent migration policy. Eventually, we aim to assess the EU system from a justice perspective and evaluate the implications for its international actorness, of its performance in the areas of migration, borders and sovereignty. As Europe is the area of the world in which human rights are most upheld and the Westphalian state more weakened in the broader framework of a process of regional integration, one would expect it to be a laboratory which could produce models of just governance that could then be replicated. Revealing the strengths and weaknesses of the European migration system from both a justice perspective and an international relations perspective allows us to analyse different dimensions of the governance of migration and to assess the EU’s potential role in it.

What Comes Next Which criteria shall we use to evaluate whether the European system of migration is just? Shall we evaluate the justness of such a system on the basis of its ability to protect national constituencies, without interfering arbitrarily in other states’ domestic jurisdiction (as from a Westphalian perspective)? Shall we consider just a system capable of granting respect for human rights in the first place (as from a cosmopolitan perspective)? Shall we evaluate justness on the basis of the system’s ability to recognize the specific needs of the individuals involved—migrants, asylum seekers, etc. (as in what can be called a ‘concrete other’ perspective)? We claim

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in this book that any evaluation of a political system has to consider a plurality of justice claims and criteria for the simple reason that different criteria are employed in the actual political debate to legitimize alternative positions. What is relevant, however, we further claim, is the coherence between a polity’s own values and its practices. The EU has portrayed itself (and has been portrayed) as a principled power (Lucarelli and Manners 2006), capable of shaping a shared understanding of ‘normality’ (Manners 2002), as well as a champion in spreading respect for human rights and a model of post-Westphalian governance. One would expect that such a peculiar institutional ‘animal’ would be able to strike a balance between the Westphalian, cosmopolitan and ‘concrete other’ concerns in managing migration. The reality is much more complex and the main reason rests in the specific characteristics of the EUMSG. In order to assess the EUMSG’s contribution to global justice in the area of migration, we need to ‘unpack’ the EUMSG in its main components: the EU institutions and the Member States. Indeed, not only the supranational level of government—e.g. the border and migration policy of the EU, and the interactions within the EU institutional setting in general—but also the national one—alongside several Member States’ migration-related policies, rules and practices—are part of the EU system of governance. For this reason, this book includes an analysis of the EU level as well as a set of country case studies: a research strategy which allows us to inductively understand the relative importance of specific justice claims in individual countries, as well as in the political struggle to define migration policy in the EU. The countries chosen include a balance between receiving countries (Italy and Greece) and countries that are frequently final destinations (France and Germany). The inclusion of the UK offers a further layer of governance by showing the dynamics of a state which has decided to leave the EU as a common project and as problem-solving actor. Hungary is included to highlight the peculiarities of a latecomer as well as of one of the most staunchly anti-immigration perspectives, able to affect the system of migration governance. Norway is also factored into showcase the understandings and the shape of policies of a non-Member State which is however strongly tied to the EU with respect to migration. The inclusion of this state also provides the perspective of a type of governance which extends beyond the territorial borders of the Union.

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In particular, in Michela Ceccorulli (2021a) explores the EU’s overall contribution to justice in migration and asylum by emphasizing some of the problems still open. Chapters 3–9 explore different country case studies: Antonio Zotti on the UK (2021a), Lena Karamanidou on Greece (2021), Michela Ceccorulli on Italy (2021b), Giorgio Grappi on France (2021), Attila Melegh, Anna Vancsó, Dorottya Mendly and Márton Hunyadi on Hungary (2020), Espen D. H. Olsen on Norway (2021) and Antonio Zotti on Germany (2021b). Each case study has three interconnected aims: to provide an informative historical overview of the developments of migration policies; to analyse the specific features of the governance of migration and the contribution to the EUMSG; and to extrapolate the embedded justice logics in the policies and assess any violations of justice from the different perspectives employed in the proposal. The concluding chapter, written by Enrico Fassi and Sonia Lucarelli (2021), summarizes the results and draws conclusions for the functioning of the EUMSG in a justice perspective.

References Aggestam, L. (2008). Introduction: Ethical Power Europe? International Affairs, 84(1), 1–11. Amnesty International. (2017, June 22). EU Refugee Crisis: Human Rights Violations and Migrants’ Deaths Are Being Ignored. Atak, I., & Simeon, C. J. (2018). The Criminalization of Migration: Context and Consequences. Montreal: McGill-Queen’s University Press. Bader, V. (2005). The Ethics of Immigration. Constellations, 12(3), 331–361. Balibar, E., Mezzadra, S., & Samaddar, R. (Eds.). (2012). Editor’s Introduction’ to The Borders of Justice. Philadelphia: Temple University Press. BBC. (2016, January 31). Borderless World Inevitable, Says Labour’s John McDonnell. BBC News. Benhabib, S. (2004). The Rights of Others; Aliens, Residents and Citizens. Cambridge: Cambridge University Press. Block, W. (1998). A Libertarian Case for Free Immigration. Journal of Libertarian Studies, 13(2), 167–186. Caporaso, J. (1996). The European Union and Forms of State: Westphalian, Regulatory or Post-Modern. Journal of Common Market Studies, 34(1), 29– 52. Carens, J. H. (1987). Aliens and Citizens: The Case for Open Borders. The Review of Politics, 49(2), 251–273.

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CHAPTER 2

The EU’s Normative Ambivalence and the Migrant Crisis: (In) Actions of (In) Justice Michela Ceccorulli

Introduction Migration has been at the top of the last European Union (EU) Commission’s concerns and is due to have a similar importance for the new one. From the Agenda on Migration of 2015 to the EU Global Strategy of 2016, documents clearly show the centrality of the issue and the opportunities and challenges it entails. Heightened tensions related to migration in recent years have provided an opportunity to appreciate the complexity of the issue for the European Union, by clearly unveiling patterns of friction which have at times led to pronounced activism and at others, to inaction. Both outcomes have been imbued with critical normative implications. Indeed, divided competences in the domain (as argued in the introduction to this book, Lucarelli 2021) are part of the explanation for the

M. Ceccorulli (B) University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_2

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EU’s performance; but limiting the analysis to that would obscure the important role of interactions between the actors within the EU’s system of migration governance and their often unintended results (Burlyuk and Noutcheva 2019; Reslow 2019). The struggles of EU institutions and Member States are an important part of these interactions and have played a prominent role in the EU’s final ability to respond, and in the type of response, to situations of clear internal crisis. Using the categories of non-domination, impartiality and mutual recognition presented in the introduction as a political justice typology (see Lucarelli 2021), this chapter looks at four key critical moments triggered by the events of recent years, to assess the normative prioritizations these interactions have yielded and their consequences. Non-domination occurs when non-arbitrary interference characterizes relations between states and hence when states participate in relations as equals (Lucarelli 2021); impartiality is approached when the rights of migrants, asylum seekers and refugees are fully respected and put upfront with respect to sovereign requirements. Mutual recognition, on the other hand, is achieved when stakeholders and affected actors’ voices, concerns and specific needs are duly heard (Lucarelli 2021; Sjursen 2017). This effort is certainly reasonable, for the last years of crisis have released an incredible range of insights to assess. Rather than simply following on from the values and principles it supports, the message the EU conveys to the external world about what is just for migration and asylum largely derives from the articulation and accommodation of its inherent and equally legitimate stakes, that is, its own preservation and the promotion of human rights (Fassi and Lucarelli 2017; Geddes and Hadj-Abdou 2018). The critical moments considered are: the attempt to revise the Common European Asylum System (2016–); the EU-Turkey deal (2016); increased cooperation with Libya (2017); and the EU’s noncontribution (from a formal point of view) to the Global Compact for Safe, Orderly and Regular Migration (2016–2018). At all these critical moments, the copious arrivals of migrants acted as detonators, and solicited interaction has unleashed quite opposite behaviours: in two cases (the EU-Turkey deal and the agreement with Libya) internal quarrels have led to the EU acting in the direction of externalization. In the remaining cases (the attempt to revise the asylum system and its would-be participation in the Global Compact), frictions have paralysed the EU.

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The chapter is organized as follows. Section “About Words: Normative Prioritization in EU Documents” searches for EU normative prioritization in two of the texts published in the context of the migration crisis. These texts clearly delineate a strategy for and a role in the governance of migration. Section “The EU in Crisis: Snapshot of Four Critical Events” goes over four situations of interaction in recent years; the context which has fed frictions is explained, looking at different layers of disagreement and their consequences. Section “The External Impact of Internal Dynamics”, then, reconciles normative considerations and observations retrieved from the documents and the empirical evidence, with the abovementioned tripartite justice typology in order to envisage the contributions (if any) to political justice that have emerged from the described events. It is argued that the EU’s ultimate behaviour (action/inaction) entails important normative considerations, and that the same is also true for its internal institutional conflicts.

About Words: Normative Prioritization in EU Documents The number of immigrants arriving in the European Union in recent years is certainly considerable if compared to past landings. Since 2015, some 1,800,000 migrants have reached the EU’s shores, albeit registering a steady decline in numbers (some 390,000 in 2016, 187,000 in 2017, 104,000 in 2018 and 86,000 through September 2019, IOM, 2019). The pace and scope of arrivals took the EU by surprise, as it was politically and institutionally unprepared to cope. Perhaps also because of this, in recent years migration has become a main trigger of policy production (or of attempts to do so). Published in May 2015, the Agenda on Migration (European Commission 2015a) aimed at tackling immediate problems related to the substantial arrivals on EU shores but also at providing a long-term strategy to consistently and adequately manage migration and asylum. To assess the normative prioritizations spelled out by the EU, referents of justice are first retrieved; then, measures conceived to redress ‘injustice’ are considered, so as to fully grasp the type of argument advanced. Overall, individuals and their rights and the preservation of the EU as a collective entity feature prominently in the EU document as main justice referents (Ceccorulli and Lucarelli 2018). Human life and human rights protection occupy a central position, and this is quite reasonable

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given that an important trigger for a more assertive role during the migration crisis was precisely the appalling number of deaths occurring in the Mediterranean. In the words of the EU, the immediate priority is the duty to protect persons in need (European Commission 2015a, 2); this concern is reiterated throughout the document and encapsulated in longer-term objectives. Perhaps just because of this emphasis, it is somehow odd to read that addressing the root causes of migration is the preferred policy option envisaged by the EU ‘to try to halt the human misery created by those who exploit migrants’ (2). Even when the EU flags international protection as utmost, when it insists on the duty of ‘responsibility’ to share the costs paid by those states receiving most of the refugees, or when it emphasizes the need to increase EU and Member States’ legal avenues for persons ‘in clear need of international protection’, similar emphasis is given to cooperation with third countries to help prevent departures through stabilization programmes, support for regional protection, capacity building (so as to help them meet their international obligations, 10) and smuggling detection activities. Third states are hence expected to improve agency and enter the migration equation as equal partners. Enhancing resilience for the benefit of migrants, refugees and the host communities has become a catchword in EU documents (European Union 2016; European Commission 2019). However, there is reason to infer that the suggested policy may arguably, in the short term, prevent the departure of persons in need of international protection, hence ruling out a potential right they may exercise in the EU; instead, human rights protection turns into a delegated responsibility. And ultimately, there would be no guarantee that individuals will be duly protected and in the conditions to act as free agents in third countries. Thus, the narration clearly emphasizes the protection of individual human rights but at the same time it is not clear how the EU intends to support such rights. The document similarly points to the many challenges that can undermine the EU’s capacity as a collective actor and underlines the relevance of duly implementing those measures aimed at internal solidarity and at promoting a foreign policy that can at least answer to, if not defuse, potential disruptive events. For example, it cites pressures faced by frontier states’ asylum systems and urges a debate on a uniform asylum status

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in the Union,1 improved cooperation between coastguards, joint attention to strengthening borders and, indeed, deepened cooperation with third countries on protection, return, lifesaving and irregular immigration detection. As explained in the 4th progress report on the agenda on migration (European Commission 2019), the EU has provided support both to frontier Member States and to states along the main transit routes to improve reception capacities. As emphasized in the document, a working Schengen system is key to the EU and to the EU economy. Building up its strength and Member States’ trust is essential to going back to a space with no internal borders (European Commission 2019). Thus, there continues to be a clear focus on preserving the collective European project, undermined by the uncoordinated reintroduction of partial checks at internal borders between 2015 and 2016 as a shield against possible secondary movements (the unauthorized transit of asylum seekers from one state to another) from frontiers states (Ceccorulli 2019). The EU Global Strategy (European Union 2016) conveys an even greater sense of the EU being threatened. The document clearly communicates a sense of ‘lethal threat’ (14) while emphasising the urgency to remain united (16) even though the perceived challenge is not specifically related to the governance of migration (Ceccorulli and Lucarelli 2017). The importance of upholding the values of protection and promotion of human rights is also expressed, with the aim of shoring up external credibility and influence (15). Like in the Agenda on Migration document, resilience in origin and transit countries is the strategy envisaged to foster better governance of the phenomenon, while the idea is advanced that mobility towards the EU of both migrants and asylum seekers needs to be legal. As the analysis of these documents shows, migration is an issue area of critical importance to the Union for it tests the EU with respect to its purported values and its internal ability to survive crisis. In both documents, the agency and empowerment of third states are considered key to rendering justice to the referents identified above. The EU promises to keep faith in its values, including the promotion and protection of individual rights. However, the distinction between regular and irregular immigration and the insistence on addressing the root causes of migration seem to already suggest a step away from the advancement of 1 Recently, solidarity measures have been encouraged with respect to disembarkations (European Commission 2019).

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the demanding conception of global political justice that equals impartiality. Insistence on resilience may suggest that mutual recognition may be at stake (Tonra 2017) in terms of promoting capacity building and enticing countries to implement their ‘own solutions’: it is however difficult to believe that containing irregular immigrants heading for the EU represents third states’ ‘own problems’. On the contrary, it seems that strengthening third states’ capacity building in this specific domain is foremost an attempt to entice sovereign capacities, approaching an understanding of justice as non-domination, which contemplates states as the main regulating actors. The following section is an analysis of events triggered by the substantial arrivals of immigrants in the EU since 2015. It assesses how the two referents of justice have been impacted by frictions arising among EU Member States and EU institutions.

The EU in Crisis: Snapshot of Four Critical Events The Missed Reform of the Common European Asylum System Adopting a common asylum system in the EU has always been a key aspect of the European integration process. First, it exemplifies the importance for the EU of international protection and second, it reflects the need to approximate Member States’ legislation in a free movement space to avoid the risk of multiple applications (asylum shopping) and secondary movements. During 2015 and 2016, previous achievements in the realm of asylum were directly called into question and were put under significant pressure because of the copious arrivals on the Union’s shores. This consequently accelerated the process of a more thorough reform. The stress experienced by frontline states (Italy and Greece) revealed the dysfunctional nature of the Dublin Regulation in assessing the ‘responsible country’ for examining asylum requests. It also concretely contributed to secondary movements among Member States, that is, unauthorized movements of migrants from frontline states. Indeed, challenges likely to affect asylum seekers were also of relevance, given the incapability of proper reception and recurrence to emergency measures potentially undermining key rights (Ceccorulli 2021b; Karamanidou 2021). Upon completion of the overall process of revision, there were a series of related proposals: the resettlement of refugees from third countries to the Union (European

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Commission 2016a); the definition of a list of safe countries of origin to expedite the examination of asylum applications (European Commission 2015b); modification of the EURODAC asylum seeker fingerprint collection database into a tool to govern irregular immigration more at large (European Commission 2016b); and the upgraded role of the European Union Asylum Office (to become an Agency) with respect to relations with third countries (European Commission 2016c). Taken altogether, these proposals meant a U-turn on protection: the latter seemed to be subordinated to the need to preserve ‘order’ in the EU and avoid disrupting the existing (albeit dysfunctional) asylum system. In fact, the proposals seemed particularly focused on avoiding secondary movements between Member States, not an easy task given the persistence of differences between asylum systems. In order to do so, measures were proposed to speed up the application process (European Commission 2016d), restrictions (with related sanctions) were imposed on asylum seekers and refugees with respect to their freedom of movement after resettlement, during the examination process and after being granted refugee status by a Member State (European Commission 2016a, e, f). One of the most controversial issues was the proposed revision of the Dublin Regulation: the European Commission document seemed to reiterate frontier states’ responsibility for preventing secondary movement by, among other measures, introducing the obligation to proceed with admissibility checks (in the case of asylum seekers’ provenance from ‘safe countries’) and security checks and by obliging asylum seekers to apply in the first country of entrance in the EU (European Commission 2016e). A ‘corrective mechanism’ in case of massive inflows was also proposed in the Dublin Regulation (European Commission 2016e), a corrective that, according to the European Parliament, was not courageous enough in directly addressing Dublin’s problems. The Commission’s proposal was essentially built on the original structure, with tough sanctions on asylum seekers’ secondary movements. In fact, the European Parliament countered in 2017 with a proposal for a deep-seated overhaul of the Dublin rules to create a system able to effectively deal with the risk of perpetual emergency: according to the Parliament report (European Parliament 2017) first countries of entrance would not necessarily be responsible for asylum seekers. Instead, the proposal would assign a much higher priority to the exigencies and preferences of asylum seekers, considering possible links with specific Member States and the acceleration of family reunification procedures. This was

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considered the only credible measure to avoid secondary movements. Thus far, though, the revision of the Dublin Regulation is at a stalemate. The lack of agreement among Member States and in the trilogue has paralysed the process of asylum reform, and instead has actually caused backsliding. On the one hand, there has been no political breakthrough leading to a change in the conditions that bring on recurrent crises. Along the same lines, the dysfunctional asylum system which risks impairing the rights of asylum seekers still exists. On the other hand, an opportunity to include migrants’ voices in the equation of asylum governance has been missed, passing up the chance to recognize them as active subjects with proper requests. Our Beloved Schengen: The EU-Turkey Statement Another key test for the European Union was the urgency perceived in the months of the migration crisis to immediately stop the inflows landing in Greece via Turkey, a situation that became particularly critical in the summer of 2015. Here it is relevant to ascertain how (and if) the EU got out of a critical situation in which Member States were directly questioning the survival of Schengen. A conspicuous number of Syrians displaced by years of civil war (which began in 2011) plus migrants already en route to the EU from other regions, added up to almost 800,000 landings in the summer of 2015 in Greece. The copious inflow resulted in an increase in migrants’ deaths at sea, and overloaded Greece’s already weak asylum system, simultaneously affecting the Western Balkan states and sharpening tensions among EU Member States. With respect to this last point, tensions arose over Greece’s capacity to properly cope with the inflows, while fears of asylum seekers’ secondary movements (European Council 2015) led some states (Germany, Austria, Slovenia, Hungary, Sweden, Norway and France) to reintroduce partial controls at their borders. Faced with the poor implementation of the redistribution scheme for asylum seekers—accorded in two decisions of the Commission in mid-2015—and fearing a major shock to the Schengen space of no border checks (Guild et al. 2015; Peers 2015) the Commission soon submitted a proposal to ensure the survival of the Schengen regime (European Commission 2016g). Among other measures, the reduction of irregular inflows in partnership with Turkey was a key condition for easing pressure on the Greek border and hence warding off a lethal threat to Schengen (see Ceccorulli 2019).

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The progressive deepening of cooperation with Turkey was thus brought to a new level with the infamous EU-Turkey statement of 18 March 2016 which sealed off the eastern Mediterranean route. In this case, the concrete possibility of Schengen being dismantled resulted in the EU’s move towards externalization (Collet 2016; Carrera et al. 2017). Agreement between all Member States was secured, demonstrating the widely shared preoccupation with inflows. Implications were numerous and on many fronts. Turkey was given a prominent role in the governance of migration, which it performed well if one looks at the number of arrivals on Greek shores in the months following the deal. However, the EU paid a high price for the trust placed in the Turkish government, with the constant threat of blackmail in the form of flooding the EU with refugees in case of adverse relations. The EU’s externalization of the issue has raised the question of whether money, copiously disbursed by the EU, can be a way of washing its hands of the matter and a reasonable solution for sharing the burden with the most affected states. Also, outsourcing may have worsened the refugee situation in already overstretched countries such as Lebanon because of the block introduced by Turkey after the deal with the EU. At the same time, it has affected the Western Balkans and Greece, failing to properly address these states’ persistent reception concerns. Finally, it is inevitably playing out on the situation and condition of asylum seekers caught in juridical and physical limbo by the EU’s governance of the issue. The ‘informality’ of the deal (which is not legally binding to the parties as an agreement would be) presents further criticalities: its unclear authorship (it is not the EU who signed it but the Member States) and the fact that it is not compulsory has determined a weakening of the juridical and democratic monitoring role of some EU Institutions (The European Parliament and the Court of Justice), confirming the prioritization of Member States’ prerogatives and concerns. As a consequence, the role of Parliament and the Court of Justice as guarantors of EU norms and values has been neglected. More pressing, in fact, is the impact on the EU as a supporter of human rights, a presumption that seems to have been fatally tainted (Amnesty International 2016; Nielsen 2019). The sharp decrease in deaths in the Aegean is mainly because departures were no longer allowed, while the closure of the route may render the journey costlier and more dangerous to persons still eager to leave their country. And while the EU has disbursed billions of euros to improve the living conditions of

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refugees hosted in Turkey through the Facility for Refugees in Turkey, this does not absolve the Union of its protection duties, which seem instead to be strongly compromised. The definition of Turkey as ‘safe’ does not prevent arbitrary practices, and Turkey is sorely deficient in the realm of protection. Ultimately, safety and voices, also of the most vulnerable, the Syrians, seem to have been sacrificed for the sake of preserving the deal. Out of Necessity? The EU’s Increased Cooperation with Libya While the EU-Turkey statement of March 2016 caused a drastic drop in arrivals in Greece, inflows have not stopped along the Central Mediterranean route: 2016 was recorded as the deadliest year for migrants heading for the EU, with more than 5000 lives lost at sea,2 while a sustained increase in arrivals at the beginning of 2017 forewarned a new record in disembarkation after more than 180,000 landings in 2016.3 Aware of the criticality of the Central Mediterranean route, the European Union had already started to focus on Libya as an interlocutor in governing migration (European Commission 2015a) but lacked a preferred channel of dialogue with the African state (European Commission 2016h). With the stall in the process of reforming the EU asylum system, de facto leaving unchanged the potential pressures on frontline states, the closure of the Eastern Mediterranean route and the worsening security situation in Libya, Italy, which claimed to be already at full reception capacity, soon recognized the necessity to hedge the potential repercussions of new massive inflows. Anticipated by a document issued by the Commission in January 2017 on the Central Mediterranean (European Commission 2017a), and backed by the formal approval of the European Council (2017), a Memorandum of Understanding between Italy and Libya was signed on 2 February 2017 (Governo Italiano 2017). This document built on previous arrangements regarding the control of irregular immigration between the two countries. Focussed on boosting capacity building (controlling flows and protecting migrants in the country), enhancing 2 https://www.iom.int/news/mediterranean-migrant-arrivals-top-363348-2016-deathssea-5079. 3 https://www.iom.int/news/mediterranean-migrant-arrivals-reached-171635-2017-dea ths-reach-3116.

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economic development opportunities in Libya and addressing the migrant smuggling phenomenon, the memorandum triggered a hectic phase of meetings and initiatives between the two countries’ authorities, but was not able to significantly decrease the number of landings on Italy’s shore. Between May and June 2017, more than 45,000 migrants landed in Italy, adding to the approximately 35,000 from the first three months of the year (Ministero dell’Interno 2019). The arrival of 8500 migrants in two days at the end of June resulted in even greater pressure to find a solution (Huffington Post 2017a). This led then Italian Minister of the Interior Marco Minniti to ask for the modification of disembarkation rules at the European table, and to report the situation to France, Germany and FRONTEX, emphasising the unsustainable conditions (Huffington Post 2017b). Meanwhile, a code of conduct for search and rescue operations implemented by non-governmental organizations (NGOs) in the Mediterranean was drafted by Italy. This code of conduct maintained that rescue activities could only be carried out if there was a sustainable reception path shared with other Member States, as reported in article 80 of the Treaties on solidarity (Ministero dell’Interno 2017). Despite efforts by the European Commission to assist and support Italy with an action plan approving the Italian code of conduct for NGOs, as well as loudly soliciting Member States’ financial contributions to dedicated capacity-building plans in Libya and inviting more coordinated action in search and rescue activities in the Mediterranean (European Commission 2017b), the option of ‘regionalizing’ rescue operations discussed at an informal meeting of Interior Ministers in Tallin (6 July 2017), was totally dismissed. The lack of Member States’ solidarity drove Italy in the direction of deeper cooperation with Libya: a military mission consisting of the deployment of a naval presence in Libya was approved by the Italian government at the beginning of August. This was part of the EU’s broader objective to build the capacity of the newly established Libyan Coast Guard in dealing with irregular immigration, detecting the smuggling phenomena and saving lives. Concurrently, drawing on a programme funded since 2016 in the framework of the EU Trust Fund for Africa on assistance on disembarkation points and centres, and for the return of migrants to their countries of origin (European Commission 2017a), a task force composed of the EU, the African Union, the United Nations and with the support of the International Organization for Migration, was created to accelerate the voluntary return of migrants

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from Libya to escape the nets of smugglers (EEAS 2017). The EU’s financial support through the EU Trust Fund had been key to assisting Italy’s strategy towards Libya: a programme called ‘Managing mixed migration flows in Libya through expanding protection space and supporting local socio-economic development’, allocated 90 million euros to addressing the socio-economic situation of migrants and refugees in the African country but also that of the local host communities. The objective was to boost the resilience of local governance structures (European Commission 2017c, 1) and train local authorities to respect a rights-based approach to migration. Under the same heading, a plan valued at 46 million euros jointly envisioned by Italy and the Commission was dedicated to strengthening surveillance on Libya’s northern and southern borders (European Commission, 2017d). Also in this case, the EU was tested on its ability to collectively address a challenge which was disproportionally affecting a Member State at times of massive arrivals. While it has to be said that Minister of the Interior Minniti’s activism was key to the course of action undertaken and that the strengthened engagement with transit countries is part and parcel of the EU’s external dimension of migration governance, we cannot ignore the fact that reinforced cooperation with Libya and stemming the flow of irregular arrivals was mostly a by-product of Member States’ contentious interaction. And as in the previous case, the direction chosen out of the impasse led towards externalization, possibly giving rise to even more concerns than in the case of Turkey. On the one hand, the plan insisted on building up the capacities of a profoundly torn and divided country. On the other hand, Libya was dragged into governing migration as if it were an ‘equal’ state in full control of its statehood tools. Moreover, recognising the country as a safe ‘port’ could not avoid clashing with the admission of the very precarious conditions in official detention structures and even worse situations in informal ones, with an admitted void in basic legislation on protection. It also conflicted with plans for the fast return of asylum seekers and migrants to origin countries. In this context, the new presence on the ground of international organizations such as the UNHCR and the IOM was merely palliative. According to some scholars, Italy and the EU adopted a persuasive narrative focussing on the exploitation of immigrants by smugglers only to mask the real objective, which was to drastically reduce irregular arrivals on Italian shores (Oxfam 2017). Even the presumption of taking into due account local communities’ exigencies

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was refuted with the accusation of misinformation about local economic and security dynamics and needs (Molenaar and El-Kamanoui-Janssen 2017). The Heritage of the EU’s Empty Chair at the Global Compact for Migration The launch of the Global Compact for safe, orderly and regular migration with the New York Declaration of September 2016 had much to do with events occurring in the European Union since the arrival of sizeable inflows in 2015. Indeed, the event was interpreted by European authorities as the international community’s attempt to provide effective formulas for governing migration, in view of the migration crisis experienced by the European Union (Mogherini 2018a). The Global Compact for Migration, a major international attempt at regulating migration and human mobility in all its aspects, thus attested to the fact that migration is a key issue for international cooperation, and acknowledged the need for an all-inclusive approach to govern human mobility. Started in 2016, the process that led to the Intergovernmental Conference of Marrakesh and the adoption of the text on a Global Compact for Migration in December 2018 saw constant consultations and negotiations among UN Member States and the participation of many other voices somehow affecting or affected by the governance of human mobility. Convinced that it had developed a model of dialogue with origin and transit countries and practices for the governance of migration-related challenges starting with the Agenda on Migration of 2015, the EU wholeheartedly welcomed the launch of the process as a way to advance its own proposals. In its approach to the Global Compact the European Union was steadfast in supporting the linchpin of the whole process, that is, its noncompulsory nature. Moreover, the sovereign rights of states to decide whom to admit and host in one’s own country was reiterated. Also, the EU strongly supported the idea of migration governance as an exercise in international cooperation, while also upholding the belief that wellregulated migration could contribute to the sustainable development of origin, transit and destination countries. Despite the EU’s readiness to lead the agenda, it fell short of expectations: on the one hand, it was prevented from acting as a unitary actor. On the other hand, its formal absence from negotiations (the EU was allowed to participate only informally in the process), and the scornful positions of some Member States

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with respect to the process and its rationale had profound repercussions for the EU itself and for its external credibility. The idea that the European External Action Service (EEAS) could speak on behalf of the EU at an international forum was looked upon as an important political signal, upgrading migration to the level of a foreign policy issue: the EEAS was supposed to bring to the table already agreed policies on migration and asylum and in particular provisions taken during the migration crisis. However, the European Council viewed this option unfavourably, and it was later discarded as a result of Hungary’s staunch opposition. In the absence of a full mandate and to partially save face, Austria, soon to have the Presidency of the Union, was selected to speak on behalf of the Presidency and of the (then) 27 Member States minus Hungary. The idea of the Union to build new partnerships and mould new alliances (Avramopoulos 2018) and go beyond the traditional ‘donor-recipient’ approach, in favour of a political partnership of equals whereby the needs, aspirations and desires of all actors involved would be listened to, so as to jointly forge a partnership, (Mogherini, September 2018b) had to be put aside. Simultaneously, the possibility of including issues of key importance for the EU’s approach to migration in relations with third states, such as the return and readmission of irregular immigrants, seemingly appeared weakened (Link 2017). But an even worse tag was attached to the EU’s incapability to deliver as a single actor: that of having a divided opinion over the values nurturing the EU’s actorness. The divisiveness of the issue of migration for the European Union was clearly showcased by the vote that accompanied the adoption of the Global Compact for Migration: Romania, Latvia, Italy, Austria, Bulgaria and Slovakia abstained from the vote. In the case of Belgium and Slovakia, governments in power ended up resigning because of the overheated internal debate. The Italian government adopted the trick of postponing the decision so as not to further strain the already litigious alliance in power (Pastore 2019). Even more alarming, though, was the vote against the pact expressed by Hungary, Poland and the Czech Republic; Hungary was second only to the US in leaving the negotiations on the Global Compact in the summer of 2018. The main arguments raised by these countries were that the pact was actually establishing a human right to migrate and that migration (even if well-regulated) could never contribute to the sustainable development of destination countries (Tebano 2018; Orban 2018). International imposition, according to these countries, was clearly infringing on their sovereign rights and was therefore to be refused

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(Euractiv 2018). These positions not only deepened the already open friction between Member States during the migration crisis (i.e. relocation plans were similarly interpreted as an intolerable handover to supranational authority), but also echoed externally, casting a dark shadow over the EU’s model of migration governance and the values underpinning it.

The External Impact of Internal Dynamics The juxtaposition of these different crises highlights important repercussions for the EU’s action as well as inaction. These, and EU words as seen before, led to the advancement (if any) of specific justice conceptions. Overall, it is safe to affirm that the crises have reiterated if not emphasized a conception of justice as non-domination as promoted by the EU, where preoccupation about the (European) community took absolute priority (see Lucarelli 2021). The need to avoid asylum seekers’ secondary movements is the unavoidable starting point from which the asylum system is doomed to be revised in the future. Also, at least two of the crises cited here have confirmed the EU’s critical objective of preserving the internal space of no border checks: both in the case of the EU-Turkey deal and cooperation with Libya, the EU has relied on third actors with the aim of slowing down or possibly eliminating irregular arrivals on its shores. The EU’s external borders and their protection have hence been rendered stronger, irrespective of the potential repercussions this could have on other stated priorities. Thus, third parties have been considered key to properly handling migration, they have received funding to meet the EU’s objectives and have been considered reliable interlocutors and equal partners in the cooperation attempt. This has brought about a series of problems: the EU has more than once been prey to Turkey’s blackmail, revealing an imbalance in the partnership and subjecting the Union to attempts at domination. Quite the opposite, the need for legitimacy of Libya’s newly founded government has enforced cooperation based on the EU’s contribution to building up Libyan capacities to control borders, which has conveniently overlapped with the strengthening of Libyan sovereign prerogatives. The EU’s initial approach to the Global Compact for Migration similarly aims to advance justice as non-domination, mirroring the desire to strengthen international solutions or ‘collective projects’ regulating ‘how states should relate to each other in order to ensure their equal status’ (Sjursen 2017, 11). The adoption of a final document thus could have been interpreted as a

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multilateral, albeit voluntary, effort at allowing deliberation on common challenges (Sjursen 2017, 11). In none of the cases mentioned, however, has the EU advanced the promotion of international procedures and structures to give individuals the key status as rightful claimants of justice. This is quite surprising considering the magnitude of individuals who were moving out of necessity between 2015 and 2016 and the precarious conditions many experienced. Nor has it favoured the pursuit of supranational authority or legal arrangements engaging individuals as autonomous co-determinants (Sjursen 2017, 12). And this despite the fact that decisions taken within the community have clearly been shown to have an impact on individuals’ autonomy outside the EU’s borders. This is clearly a negation of justice as impartiality and these actions could possibly be seen as allowing the conditions for forms of domination. From the suspended revision of the asylum system producing an uncertain legislative framework and leaving unchanged the seeds of future crises, to the case of stranded asylum seekers along the Balkan routes and Greece and the destiny of migrants kept in Libya just to name a few effects of the EU’s action/inaction, the retreat from a key pillar of the EU’s actorness abroad seems to be well underway. This is not to infer that the EU does not uphold the human rights of migrants altogether: perfectly in tune with what was explained in the key documents examined herein, this objective seems to be better absolved by relying on third states and avoiding situations in which the denial of rights may be most likely to occur, that is, in irregular attempts to reach the Union. Building up the capacities of third states is the pragmatic effect of co-ownership and resilience as intended by the EU in the realm of migration, and as such it raises the question of whether the EU or third states’ interests are being promoted. With respect to the latter point, an attempt to promote contextsensitive institutional frameworks, accounting for the specific concerns and vulnerabilities of those affected (Sjursen 2017, 13) seems not to find large space in the cases analysed. This is true both in terms of states, as seen for example in the case of Libya, and migrants, as epitomized by all cases presented. On the contrary, the tendency seems to be towards readymade solutions elaborated by the EU which somehow negate the need for specific hearings. Hence, for example, building up state-capacity in Libya is considered to be the best way to tackle the smuggling phenomena irrespective of the complex reality on the ground; the Facility Fund for

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Turkey supposedly compensates for the huge amount of refugees present in the country; while the proposal to take into account asylum seekers’ needs has been blocked in the trilogue. A further aspect of interest regards the external impact of internal quarrels among EU institutions. Overall, this type of conflicting interaction (the Council and the Parliament in the case of reform of the asylum system; in the case of the deal with Turkey and on the Global Compact for Migration) directly undermines the credibility of the EU as a problem-solving actor and hence as an actor able to advance any conception of justice in the global arena, be it because of the ‘delegation’ of potential challenges (Turkey, Libya) or because of inaction in key chapters regarding the governance of migration (asylum and the Global Compact).

Concluding Remarks This chapter has gone deeper into how internal interaction has affected the EU’s ability to respond and the modality of response to situations of internal crisis. Hence it contributes to considering the potential role of internal determinants in advancing specific conceptions of global political justice in the EU’s migration governance. The process of reforming the EU asylum system, the EU-Turkey deal, strengthened cooperation with Libya and the lack of formal participation in the Global Compact for Migration have been analysed as key moments of institutional and political crisis, producing either action or inaction on the part of the EU. In the case of reinforced cooperation with third countries (Turkey and Libya) internal quarrels have led to externalization processes and hence to a type of action inviting the contribution of third states to reduce the inflow of irregular arrivals into the EU. This type of move does not contradict the narration of the EU which seemingly stresses the relevance of vigorous external action to meet the EU’s objectives. However, the way in which the crises have effectively been solved has largely underlined the subordination of the overall human rights of migrants and the specific needs of the affected states and individuals. Protection of the EU’s space has clearly gained priority and relations with third actors have underlined the regulatory role of states, and have emphasized (if not helped to strengthen) sovereign prerogatives. But also inaction has produced important consequences: paralysis, as in the case of revision of the Common European Asylum System or disagreement over

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the EU’s participation in the Global Compact for Migration. Both cases have impeded the advancement of any conception of justice, while backfiring on the EU, its actorness and its values in the global world. In fact, the most resounding consequence has been the EU’s affected image as a promoter of human rights, side-lining any expectations regarding the promotion of a human rights-centred conception of justice in the field of migration.

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European Commission. (2019, October 16). Progress Report on the Implementation of the European Agenda on Migration (COM (2019)481 final). Brussels. https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/pol icies/european-agenda-migration/20191016_com-2019–481-report_en.pdf. Accessed 21 January 2020. European Council. (2015, December 1). Integrity of the Schengen Area (14300/15). Brussels. https://statewatch.org/news/2015/dec/eu-councilschengen-integrity-14300-12-2015.pdf. Accessed 22 May 2019. European Council. (2017, February 3). Malta Declaration by the Members of the European Council on the External Aspects of Migration: Addressing the Central Mediterranean Route (Statements and remarks 43/17). https:// www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-dec laration/. Accessed 4 May 2019. European Parliament. (2017, November 6). On the Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection (Recast) (COM (2016)0270—C80173/2016—2016/0133(COD)). http://www.europarl.europa.eu/doceo/ document/A-8-2017-0345_EN.html. Accessed 28 July 2019. European Union. (2016, June). Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy. http://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_r eview_web.pdf. Accessed 15 February 2019. Fassi, E., & Lucarelli, S. (Eds.) (2017). The European Migration Systems and Global Justice: A First Appraisal. GLOBUS Report 1, ARENA Report 2/2017. https://www.globus.uio.no/publications/reports/2017/2017-01report-migration.html. Accessed 2 October 2019. Fassi, E., & Lucarelli, S. (2021). The EU Migration System and Global Justice: An Assessment. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 259–277). New York: Palgrave Macmillan. Geddes, A., & Hadj-Abdou, L. (2018). Changing the Path? EU Migration Governance After the “Arab spring”. Mediterranean Politics, 23(1), 142–160. https://doi.org/10.1080/13629395.2017.1358904. Accessed 6 October 2019. Governo Italiano. (2017, February 2). Memorandum d’intesa sulla cooperazione nel campo dello sviluppo, del contrasto all’immigrazione illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica Italiana. Rome. http://www.governo. it/sites/governo.it/files/Libia.pdf. Accessed 11 September 2019. Guild, E., Brouwer, E., Groenendijk, K., & Carrera, S. (2015). What Is Happening to the Schengen Borders? (CEPS Papers in Liberty and Security,

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86/December). https://www.ceps.eu/ceps-publications/what-happening-sch engen-borders/. Accessed 14 January 2019. Grappi, G. (2021). France and Migration Between Logistification and Ethical Minimalism. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 147–171). New York: Palgrave Macmillan. Huffington Post. (2017a, July 4). Migranti, esclusiva Huffpost: la lettera del Viminale all’UE per rivedere l’operazione Triton e forzare il no di Francia e Spagna. https://www.huffingtonpost.it/2017/07/04/migranti-esclusiva-huf fpost-la-lettera-del-viminale-allue-per_a_23015868/. Accessed 19 April 2019. Huffington Post. (2017b, June 17). è emergenza migranti: 8500 arrivi in due giorni. E Minniti rientra in Italia da Washington. https://www.huffingto npost.it/2017/06/27/migranti-8500-arrivi-in-due-giorni-opposizione-allatt acco_a_23003793/. Accessed 22 July 2019. Hungarian Government. (2018, February 19). Viktor Orbán. “State of the Nation” Address. https://www.kormany.hu/en/the-prime-minister/theprime-minister-s-speeches/prime-minister-viktor-orban-s-state-of-the-nationaddress-2019. Accessed 4 April 2019. IOM. (2019, September). Mixed Migration Flows in the Mediterranean. https:// migration.iom.int/reports/europe-%E2%80%94-mixed-migration-flows-eur ope-monthly-overview-september-2019?close=true. Accessed 7 December 2019. Karamanidou, L. (2021). Migration, Asylum Policy and Global Justice in Greece. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 89–117). New York: Palgrave Macmillan. Link. (2017, November 19). Perché il Global Compact sulle migrazioni conviene all’Italia. http://www.vita.it/it/article/2018/11/19/perche-il-global-com pact-sulle-migrazioni-conviene-allitalia/149802/. Accessed 8 December 2019. Lucarelli, S. (2021). The EU Migration System and Global Justice: An Introduction. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 1–32). New York: Palgrave Macmillan. Melegh, A., Vancsó, A., Mendly, D., & Hunyadi, M. (2020). Positional Insecurity and the Hungarian Migration Policy. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 173–197). New York: Palgrave Macmillan. Ministero dell’Interno. (2017). Codice di Condotta per le ONG impegnate nelle operazioni di salvataggio dei migranti in mare. https://www.interno.gov.it/ sites/default/files/codice_condotta_ong.pdf. Accessed 3 October 2019.

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Ministero dell’Interno. (2019, November 13). Cruscotto statistico giornaliero. Dipartimento Libertà Civili e Immigrazione. https://www.interno.gov.it/ sites/default/files/cruscotto_statistico_giornaliero_13-11-2019.pdf. Accessed 14 November 2019. Mogherini, F. (2018a, November 29). Speech by High Representative/VicePresident Federica Mogherini at the Plenary Session of the European Parliament on the Preparation of the Marrakech Intergovernmental Conference of 10–11 December on the UN Global Compact for Migration. EEAS. https://eeas.europa.eu/headquarters/headquarters-homepage/ 54642/node/54642_nl. Accessed 4 August 2019. Mogherini, F. (2018b, September 26). Remarks by High Representative/VicePresident Federica Mogherini at the High-Level Panel Event on Migration and Structural Transformation in Africa During the 2018 UN General Assembly. EEAS. https://eeas.europa.eu/headquarters/headQuarters-hom epage/51116/remarks-hrvp-federica-mogherini-high-level-panel-event-mig ration-and-structural-transformation_lt. Accessed 5 January 2019. Molenaar, F., & El-Kamanoui-Janssen, F. (2017). Turning the Tide: The Politics of Irregular Immigration in the Sahel and Libya. CRU Report, Clingendael. https://www.clingendael.org/sites/default/files/pdfs/turning_the_ tide.pdf. Accessed 22 January 2019. Nielsen, N. (2019, November 7). Greek Migrant Hotspot Now EU’s ‘Worst Right Issue’. EUObserver. https://euobserver.com/migration/146541. Accessed 7 May 2019. Olsen, E. D. H. (2021). Norway’s Approach to Migration and Asylum as a NonEU State: Out, but Still In. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 199–224). New York: Palgrave Macmillan. Oxfam. (2017, February 2). EU-Libya Plans Shine Spotlight on European Duplicity. https://www.oxfam.org/en/press-releases/eu-libya-plansshine-spotlight-european-duplicity. Accessed 7 July 2019. Pastore, F. (2019). Not so Global, Not so Compact. Reflections on the Shitstorm Surrounding the Global Compact for Migration. IAI Commentaries. https://www.fieri.it/2019/01/09/not-so-global-not-so-compact-ref lections-on-the-shitstorm-surrounding-the-global-compact-for-migration/. Accessed 13 November 2019. Peers, S. (2015, December, 2). EU Law Analysis: Can Schengen Be Suspended Because of Greece? Should It Be? EU Law Analysis. http://eulawanalysis.blo gspot.com/2015/12/can-schengen-be-suspended-because-of.html. Accessed 8 April 2019.

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Reslow, N. (2019). Horizontal and Vertical Diversity: Unintended Consequences of EU External Migration Policy. The International Spectator, 54(1), 31– 44. https://doi.org/10.1080/03932729.2019.1548840. Accessed 5 August 2019. Sjursen, H. (2017). Global Justice and Foreign Policy: The Case of the European Union (GLOBUS Research Papers 2/2017—May 2017). https://www.sv. uio.no/arena/english/research/publications/arena-working-papers/2017/ wp-6-17.pdf. Accessed 7 November 2019. Tebano, E. (2018, December 6). Osce, il ministro degli esteri Ungherese: ‘L’immigrazione non è un diritto umano’. Corriere della Sera. https://www. corriere.it/esteri/18_dicembre_06/osce-ministro-esteri-ungherese-l-immigr azione-non-diritto-umano-fc00a94c-f99c-11e8-ae58-9c21af36aa5f.shtml. Accessed 25 February 2019. Tonra, B. (2017, March 1). Resilience and EU Foreign Policy: A Promise of Justice as Mutual Recognition? Global Justice Blog, GLOBUS Project. http://www.globus.uio.no/resources/global-justice-blog/tonra-res ilience-feb-2017.html. Accessed 3 November 2019. Zotti, A. (2021a). The Immigration Policy of The United Kingdom: British Exceptionalism and the Renewed Quest for Control. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 57–88). New York: Palgrave Macmillan. Zotti, A. (2021b). Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 225–258). New York: Palgrave Macmillan.

CHAPTER 3

The Immigration Policy of The United Kingdom: British Exceptionalism and the Renewed Quest for Control Antonio Zotti

Introduction: The UK’s Exceptional Position in the European Integration Process The UK is the first country to have ever relinquished its membership in the European Union (EU)—although, at the time of writing, the nature of future relationships between the two parties is far from being determined, also due to the health emergency triggered by the COVID19 pandemic. That being so, discussing Britain’s participation in the EU Migration System of Governance (EUMSG, see Lucarelli 2021) might sound nonsensical, especially considering that the retrieval of full control of borders and immigration policy was one of the main talking

A. Zotti (B) Catholic University of the Sacred Heart, Milan, Italy e-mail: [email protected]

© The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_3

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points of the Leave campaign.1 Indeed, the enduring, intricate connection between discussions on Europe/the EU and immigration can be illustrated by the near disappearance of the British public’s concern about immigration after the referendum on the withdrawal of the UK from the Union: while in June 2016 migration was estimated to be the most salient issue for 48% of the population, the figure dropped to 13% in November 2019. With only 26% of people saying that a few or no immigrants of a different race should be allowed, Britain turns out to be one of the least anti-immigration countries in Europe. One may well regard this as the reassuring effect of having taken back full control of conditions for the entry and stay of foreigners. Yet interestingly enough, over the same period as much as 62% of the public has come to see Europe and the EU (and the UK’s future relationships with them) as the issue of greatest concern (Blinder and Richards 2020). At the same time, most polls show that over the last two years a majority of Britons would have opted to remain in the EU if they had been given a new opportunity to vote (Cecil 2019). While less than four years ago the EU was deemed to be the culprit of what was perceived as the sorry state of British democracy, today the Remain campaign’s prospect of ‘jumping into the void’ seems to have become quite a common concern. Since its outset, the UK has played a sui generis role in the European integration project, as evidenced by the opt-outs it obtained in policymaking domains of the EU as important as the Economic and Monetary Union (EMU) and Justice and Home Affairs (JHA)—particularly the

1 The withdrawal of the UK from the EU was officially campaigned for by the comparatively moderate ‘Vote Leave’, a cross-party group consisting of the Eurosceptic groups Conservatives for Britain (including most of the Conservative Party’s Members of Parliament supporting the withdrawal—almost half of them), Labour Leave and Business for Britain. The other Leave organization was Grassroots Out/Leave.EU, which endorsed the UK Independence Party, part of the Conservative Party, plus a handful of Labour MPs and the Democratic Unionist Party. The ‘Remainer’ camp, on the other hand, acted through the ‘Britain Stronger in Europe’ organization, bringing together businessmen, the Labour ‘In for Britain’ campaign and MPs from the Conservative, Liberal Democrat and Green parties. According to Hobolt (2016), from the outset of the campaign, the battle lines were starkly drawn up by the two sides: the economy versus immigration. Vasilopoulou (2016), on the other hand, while pointing out the great overlap in the arguments of the two Leave campaigns (the economic cost of membership, its effects thwarting Britain’s ambitions as a world leader and the unfair migration policy it implicated), finds Grassroots Out/Leave.EU more focused on migration. On 23 June 2016, 51.9% of British voters cast their ballot in favour of withdrawing from the EU.

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Schengen Area. In fact, the UK seems to have never abandoned its deepseated sense of having a history and character distinct from that of ‘the Continent’ (Spiering 2015a). Not only political processes and discourses, but also the media, the arts and popular culture have to varying degrees been permeated by the notion of an essential difference between the UK and ‘Europe’, often premised on the implicit assumption of the former being morally and politically superior to the latter. Connected to this unique form of ‘othering’ (Gibbins 2014) are/were the characteristics of British Euroscepticism (Gifford and Tournier-Sol 2015; Spiering 2004; Forster 2002). The latter is notable because it claimed to stand in defence of democratic principles and practices of personal liberties against the ‘threat’ posed by the European Union.2 The singular UK-EU relationship is epitomized by the ‘best of both worlds’ image, used to convey the idea that the country was in the unique position to cherry-pick those aspects of the integration process it wanted to partake in (Portillo 2014). This notion was sanctioned by the Policy Paper issued by the British government in February 2016 to set forth the results of the renegotiation of the terms of the UK’s EU membership. The document was significantly entitled ‘The best of both worlds: the UK’s special status in a reformed European Union’. According to the document, thanks to the new arrangement, the country was to be ‘in the parts of Europe that work for us’, but out of those that do not—e.g. the commitment to the realization of an ever-closer union (regarded as a euphemism for a European superstate), the common currency, Eurozone bailouts and ‘the passport-free no border area’ (British Government 2016). Migration was the first policy issue mentioned in Prime Minister David Cameron’s foreword to the document, which in the very first paragraph states: ‘There will be tough new restrictions on access to our welfare system for EU migrants, so that people who come to our country can no longer take out before putting something in’ (British Government 2016). The same ‘best of both worlds’ image was used by Tony Blair to ensure that the opt-in system at the base of Britain’s participation in the

2 According to Eurosceptics, to represent a threat would be (or better, would have been) not only a technocratic supranational polity, but also the very European-ness, as Europe is seen as the mother lode of warmongering, authoritarianism and extremism—as opposed to Britain’s allegedly innate disposition for liberty and democracy (Spiering 2004; Wellings and Baxendale 2015).

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EU’s asylum and immigration policy would enable the country to pick only those aspects it found convenient, while keeping as much control as possible of immigration flows from abroad. This was so in spite of the fact that full participation in the European single market significantly limited Britain’s ability to manage intra-EU movement, despite its opt-out of the Schengen Area. This ‘transactional’ attitude towards coordination in the Justice and Home Affairs policy area—and the integration project at large—put Britain in a very peculiar spot vis-à-vis the Union’s intent to act according to normative standards—an intent that this book examines by assessing the adequacy of the conduct of the EUMSG’s components with respect to three conceptions of global justice. The first is a Westphalian notion— justice as non-domination—according to which the moral integrity of a polity’s conduct ultimately depends on whether it prioritizes the interests and values of their own and other countries’ domestic communities; decision-makers may well take steps to advance the conditions of moving, entry and stay of migrants—possibly in a multilateral manner—but have the moral duty to do so without impinging on their own and other states’ sovereignty. The second is a cosmopolitan conception—justice as impartiality—premised on the unconditional value of human rights as sanctioned by cogent universal (customary or statute) norms. Finally, there is the conception of justice as mutual recognition, according to which each individual and group (immigrant and native) should be approached based on their own subjectivity. The asylum and immigration context, thus, sets apart not only the UK’s ‘fringe position’ within the EU but also, relatedly, the ‘exceptional’ character of the UK’s immigration system. The country’s immigration policy and its position within the EUMSG have been significantly affected by Britain’s practical and cognitive legacy as an empire and a global power. UK immigration policy has also been strongly influenced by the specific role and character of the British bureaucratic apparatus, the lack of constitutional and judicial checks on its legislative branch and the significant powers of its executive (Zotti 2019; Geddes and Scholten 2016; Joppke 1999). Additionally, immigration issues have become more salient with their politicization, linked to British policy-makers’ increasing susceptibility to popular sentiments (Balch and Balabanova 2016; Carvalho et al. 2015).

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This chapter accounts for the UK’s participation in the EUMSG by providing an overview of the historical development of British immigration policy in order to identify some long-term trends. We then proceed to identifying the main features of the UK’s migration policy, and conclude with an assessment of the UK’s migration policy through the lenses of global justice.

The Historical Development of UK Immigration and Asylum Policy Early rules regarding mobility and control of migration began to emerge in Britain from the time of the revocation of the Edict of Nantes in 1685. In the aftermath of the French Revolution, Britain put great effort into creating more consistent criteria to identify people as ‘insiders’ and ‘outsiders’ relative to a (purportedly) closed, coherent national community. Accordingly, clearer concepts of citizenship and tougher processes of naturalization were established, together with a growing set of regulatory and institutional instruments—e.g. mechanisms to select immigrants based on their occupation, wealth and religion—designed to cope with the political and economic repercussions of growing international human mobility. Throughout the eighteenth century, though, Britain continued to allow politically and socially displaced people to immigrate. Shaw (2015) reports a well-established public commitment to the notion that refugees were entitled not only to a temporary stay but also to a dignified existence. By the turn of the eighteenth century, however, the issue of how to regulate the entry of large numbers of refugees and select them based on well-established criteria became the object of widespread debates (Bashford and McAdam 2014). Nevertheless, even the 1905 Alien Act—‘the first recognisably modern law that sought permanently to restrict immigration into Britain according to systematic bureaucratic criteria that were initially administered and interpreted by a new kind of public functionary: the immigration officer’ (Glover 2012, 1)—consisted more of a set of measures designed to deal with specific issues (especially anti-Semitic sentiments) rather than providing a comprehensive system designed to regulate human movements. For the first time, the Alien Act formally identified ‘criminal aliens, the destitute, the ill or the infirm’ as ‘undesirable immigrants’ who would place a burden on the country’s relief institutions and the emerging health and welfare systems (Bashford and McAdam 2014).

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The connection between immigration and welfare, and in particular ‘recourse to public funds’, would remain a contentious aspect of immigration policy for years to come, in tension with Britain’s self-representation as a ‘liberal empire’ providing unrestricted refuge to persecuted people. In the twentieth century, new anti-alien sentiments were stirred by nationalistic enmity linked to the two world wars, combined with historical racial prejudices, resulting in new restrictive measures. Yet, these changes pertained primarily to the governance of Britain’s immigration policy—which became more systematic and centralized—rather than its underlying paradigm, which ultimately remained informed by principles of openness and non-discrimination. Moreover, for the first half of the century, immigration rates remained relatively low and accompanied by high levels of British emigration towards the colonies, which resulted in the government only occasionally having to resort to its new powers. That being so, the real watershed for UK immigration and asylum policy was the country’s transition from metropole of a worldwide empire to a nation-state, increasingly engaged in regional and international institutionalization processes. The pace of this transformation, already in motion in the interwar period, picked up dramatically in the aftermath of World War II, when anti-colonial struggles forced the UK to reshape its relationship with the once-imperial British community of states and their respective populations. This effort and its unexpected consequences would arguably serve as the main premise for the UK’s migration policy until the 1960s. In the early phase of this epochal transformation, freedom of movement was granted by default to all subjects of the British crown: based on the 1948 British Nationality Act, citizens of the Commonwealth of Nations and newly independent countries like India were guaranteed the right of entry and settlement in the UK. According to the British government’s previsions, these permissive conditions would simply serve to maintain a sense of post-imperial togetherness. Largely unexpectedly, they also resulted in the reversal of the traditional direction of intra-empire (now intra-Commonwealth) human movements, with an increasing number of predominantly economic migrants moving from the periphery towards the (former) parent state, availing themselves of their newly-established right of movement and settlement as quasi-citizens. The effects of the post-imperial arrangement were soon regarded as unsustainable by British authorities, as Commonwealth immigrants were virtually entitled to the same services provided by the nascent

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national welfare system to the UK’s population. These practical considerations only aggravated sentiments of discomfort—if not overt hostility— harboured by large sectors of the general public and the British elite towards non-white immigrants. Moreover, the British government had no long-term plan to integrate the workforce coming from abroad. Foreign labour was only to be admitted as long as post-war reconstruction would require it, while permanent settlement and family reunification were prevented as much as possible. Restriction and control of flows originating from Commonwealth countries became British migration policy’s top priority (Smith and Marmo 2014). The measures taken from the 1960s on to restrict and select entry of people coming from the former colonies—mostly based on racial grounds—impinged on the UK’s compliance with the principle of non-refoulement of former imperial subjects facing discrimination in newly independent states.3 The 1971 Immigration Act (IA) established the crucial distinction between those entitled to the ‘right of abode’ (basically UK born/UK passport holders) and persons from former British provinces (notably the Indian subcontinent and the Caribbean) whom, as a result of the new law, were subject to immigration controls in order to enter Britain. The 1971 IA, which still provides the basic legal structure for the current UK migration system, also made the Home Office the pivot of the national migration system and the body mainly responsible for achieving the goal of ‘zero net migration’. Despite the British public’s animus towards non-white immigration, restrictive measures were reassuring enough to allow for the implementation of a remarkably liberal integration agenda. Tight border controls, the Home Office’s vast executive discretion and the relatively low number of foreigners dwelling in the country not only enabled the government to enforce comparatively advanced non-discrimination laws, but also spared it the implementation of taxing assimilation projects. The result was that national groups from the Commonwealth—significantly framed by the authorities in terms of ‘racial communities’—were clustered in minority neighbourhoods to be 3 One of the most eminent cases is that of the 200,000 Asians expelled in 1968 from Kenya, left stateless after the UK (and India) refused their entry: Britain not only refused to abide by the 1951 Convention, but also disavowed any obligations towards people who had been until recently British citizens by imposing immigration controls (no matter what the reason for entering the country) on all British passport holders without at least one parent born, naturalised or registered in Britain as a citizen of Britain or its colonies—de facto favouring the entry of white Commonwealth citizens only.

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governed through ‘race relations’ legislation (Spencer 2011). This in turn resulted in a policy of proto-multiculturalism based on residential segregation—often narrated as ‘self-segregation’ despite the active role of the authorities in shaping this result (Latour 2014; Phillips 2007). During the long Conservative era (1965–1993), governments kept to the traditional path of increasing restrictiveness, while the British migration system progressively aligned with continental standards, with the 1981 British Nationality Act further streamlining the legal concept of citizenship, also by dropping the territorial criterion for its acquisition in favour of ancestry. It was during this extended period of Conservative rule that the UK became a member, in 1973, of the European Communities (EC). This step was not merely an effect of Charles de Gaulle relinquishing the French presidency in 1969, which effectively removed the veto on Britain’s accession. In fact, since the UK’s first two applications in 1961 and 1963 were turned down, it had become even clearer that the Commonwealth and the European Free Trade Area—the looser trade organization designed by the UK to incorporate and possibly supplant the Communities—were inadequate when it came to fulfilling Britain’s commercial potential. Besides, by the time the third application was shelved, technical stumbling blocks such as Britain’s budgetary contribution and participation in the Common Agriculture Policy appeared less insurmountable (Dinan 2010). Nevertheless, Prime Minister Edward Heath’s enthusiasm for EC entry was not common among British politicians, as evidenced by the narrow parliamentary majority that ratified the Treaty of Accession. Lack of British conviction was evidenced by the renegotiation of the terms of the UK’s accession, which took place in 1974 to honour a campaign promise of the newly-elected Labour government.4 Although an overwhelming majority of the British people voted in favour of continued EC membership in the 1975 referendum, and the cross-party consensus materialized that would come to uphold the country’s lukewarm participation in the integration project, suspicions remained strong that the Communities were already moving beyond mere economic integration and towards the creation of a ‘superstate’. Accordingly, as integration deepened throughout the 1980s and 1990s, British cabinets did their best to thwart supranationalization efforts and/or 4 The Labour Party remained highly divided on membership in the EC until its heavy defeat in the 1983 general election, which was run on a platform which included commitment to withdrawing from the EC.

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pushed for special concessions—i.e. a reduced budget contribution—and opt-outs. Admittedly, not even Margaret Thatcher’s Euroscepticism and her penchant for ‘conviction politics’—in contrast to the EC’s emphasis on comity and negotiation—resulted in any serious threat to leave the Communities—nor did it prevent her, in 1985, from signing the Single European Act, as this was deemed beneficial to Britain’s interests and her attempt to force on her party an aggressive neoliberal economic programme (Vail 2015). The same ‘transactional’ logic can be identified at the basis of the UK’s decision to stay out of the Schengen Agreement— originally a set of international treaties involving twelve Member States outside the legal regime of the EC—as the initiative aimed at eliminating borders made more sense for continental countries, whose private citizens, commercial transport and infrastructure cross much more routinely inter-state frontiers (Emerson 2011). In the 1980s, measures such as the introduction of visas and impositions on all carriers transporting people to the UK without appropriate documentation started the process of externalization and privatization of immigration control (shifting the onus of detecting irregulars onto airline and shipping companies), while at the same time thwarting the attempts of asylum seekers—often unable to obtain appropriate documentation— to reach the country. The next big shock for British immigration policy was triggered by the fall of the Iron Curtain. With an unprecedented number of asylum seekers from Eastern Europe and the Balkans flocking to the British borders, humanitarian migration became the main concern. The British authorities’ response did not in fact depart in any significant way from the country’s traditional, generally restrictive approach to immigration policy. Accordingly, the UK’s first asylum acts, passed respectively in 1993 and 1996, were aimed at reducing asylum claims: ‘fast-track’ procedures for quick dismissal of applications were created, detention of asylum seekers allowed, and benefit entitlements were reduced. With the Labour Party’s rise to power in 1997, British migration policy switched from an unconditionally restrictive approach to one of ‘managed migration’ or ‘selective openness’ (Scott 2015; Somerville et al. 2009). For the first time in modern history, the UK accorded foreign workers systematic access to its labour market—that is, complete with fully-developed integration policy measures, and not only subservient to contingent national economic interests as in the early post-war decades. Immigrant labour was selected through the granting of visas for highly

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skilled immigrants, schemes for international students and eventually a full-fledged points-based system. As for participation in the development of an area of freedom, security and justice—the evolution of the 1985 Schengen Agreement—the Labour Party’s rise to power did not dramatically change Britain’s ‘at arm’s length’ approach to the integration project. In fact, by the time the Schengen regime was integrated into EU law with the Treaty of Amsterdam, free movement across internal borders and the creation of an area providing justice based on shared values, all directly accessible by European citizens, had become one of the most defining aspects of European integration. In signing the protocol that exempted Britain from participating in the border-free zone, Tony Blair’s government was not only consolidating the country’s special status regarding matters of public policy, but also stating that the defence of the country’s sovereignty—e.g. making sure that ‘there are proper restrictions on some of the European borders that end up affecting our country’ (Tony Blair, 25 October 2004, quoted in Geddes 2005)—was far from being the exclusive prerogative of Tory-led cabinets. Arguably, the UK’s ‘selective use of the EU as an alternative, cooperative venue for migration policy management actually reinforced rather than overturned established patterns [of domestic policy]’ (Geddes 2005, 723). By the first half of the 2000s, the points-based system resulted in a greater number of foreign workers and students moving across the single market than forced immigrants. The impact of this component of the EU’s freedom of movement on Britain’s immigration policy, despite the abovementioned opt-out from the Schengen Area, has been regarded as an unobtrusive—and ironic—form of Europeanization of UK-bound flows and British politics (Geddes and Scholten 2016). However, the government’s grip on immigration policy remained significant. As observed by Geddes (2005, 734), ‘Britain has tended to participate in coercive measures that curtail the ability of migrants to enter the EU while opting out of protective measures such as the directives on family reunion and the rights of long-term residents that to some extent give rights to migrants and third-country nationals’. The ‘selecting’ qualifier of Britain’s openness derived not only from the needs of its national economy, but also from a very strong security rationale (Seidman-Zager 2010; Innes 2010). New controls were set in place to combat ‘illegal immigration’ (sic), and access to refugee status was made conditional on more restrictive requirements. In addition to selecting openness (Scott 2015), the New Labour era also became renowned for an

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even more active commitment to migrants’ integration. Effective governance of racial relationships was to be achieved by replacing traditional defacto multiculturalism—consisting of an array of spontaneous, closeknit minority communities—with a ‘civil integration’ model, entailing public acceptance of a loosely framed set of shared values and behavioural requirements (Saggar and Somerville 2012, 18). As for the reception of forced migrants, the Asylum Act of 1999 justified firmer controls on entry based on the promotion of good race relations (Maughan 2010). The Act also provided a new legal framework for the detention of asylum seekers to combat irregular entry and strengthened the hand of the Home Secretary by expanding its powers to search, arrest and detain asylum seekers (Sales 2002). The policy sought to reduce the backlog of cases and introduced the forced dispersal of asylum seekers to relieve the concentration of claimants living and working in London and southeast England. The dispersal system was also perceived as a form of social engineering, whereby asylum seekers were assigned to live in areas of economic decline and with elevated levels of crime and violence. The 2000s saw the adoption of a string of measures—especially through the Nationality, Immigration, and Asylum Act of 2002—that ‘criminalized’ even more the process of seeking asylum and limited the rights of refugees (Back et al. 2002). Among others, the remit of the Immigration Appeal Tribunal was reduced to errors of law, and the automatic right to a bail hearing was abolished—which meant that asylum seekers could be detained at any time during their application, not just prior to removal. A White List of safe countries was also created—not so much to speed up the processing of protection demands, but to cut down on the number of applications, especially from countries more likely to generate flows of forced migration. Moreover, according to the new law, asylum seekers would have to prove that they were destitute and that the application for asylum had been made ‘as soon as reasonably practicable’ upon arrival in the UK in order to get support (Keyes 2004). Furthermore, the Home Office could withhold support from applicants who could not provide an account of how they had arrived in the UK, how they had been living since their arrival or from anyone who did not cooperate with the authorities. In 2004, the Asylum and Immigration (Treatment of Claimants) Act came into force. The norm was primarily aimed at limiting the role of the courts in immigration appeals. The government justified this measure not only as a way to reduce the

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mounting backlog, but also to deter legal advisers from enabling applicants to ‘abuse the system’ in order to remain in the UK, and to authorize the government to deport failed asylum seekers ‘without further judicial interference’ as stated by Blair in 2003 (Ibrahim and Howarth 2018). The Act also empowered the authorities to refuse welfare support to failed asylum seekers with dependents; children would be supported by the system but could be removed from their parents (Mulvey 2010). The norm also made the provision of accommodation to failed asylum seekers who could not return home immediately, conditional on participation in community activities, and targeted ‘sham marriages’. The Immigration, Asylum, and Nationality Act of 2006 also further empowered immigration officers.

UK Immigration Policy Today and Its Participation in the EUMSG With the transition in 2010 to the current Conservative-dominated period, migration climbed up the ranks of public priorities, as evidenced by the campaign preceding the 2010 general elections (Bale and Humpshire 2012; Kelly and Crowford 2011). The agendas of all major political parties were increasingly drawn up to address the public opinion’s growing worries. This ‘responsive’ policy approach—which saw the government provide ‘responsible issue management’ of public hostility to immigrant newcomers—marked a departure from Britain’s traditionally bureaucratic, executive-led one (Ford et al. 2015; Freeman 1994). Post-2010 governments carried on with the restrictive approach of the past, evidenced by the new limitations and controls introduced with the Immigration Acts of 2014 and 2016, or the circumscribed response to the 2015 migrant crisis, with the sole commitment to resettle a limited number Syrian refugees. UK immigration policy in recent years has continued on the path described above, especially focusing on (i) the aim to reduce the inflow of foreign people through the net migration cap—i.e. the difference between the number of foreign nationals who move to the UK for a year or more and those who leave for the same periods (Vargas-Silva and McNeil 2017)—and (ii) the creation of a hostile environment for unauthorized

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immigrants, asylum seekers included.5 These policy goals informed the British government’s response to the so-called refugee crisis of 2015, as well as the UK’s role in the EUMSG. The Net Migration Cap The UK is hardly the only state that, in defiance of its demographic dynamics, acts under the explicit premise of not being a country of immigrants. What distinguishes the British evidence-defying postulate from, say, Germany’s is that it does not rely on a sole rationale—e.g. ethnic homogeneity. The assumption that the UK can (no longer) be a country open to immigration—despite its quite successful history of integration and multiculturalism—is based on a more composite notion of exceptionality that draws, among others, on the country’s insular nature—with the supposedly self-evident corollary of a ‘more finite’ inhabitable space than continental nations (Wodak 2018; Bevitori and Zotti 2019)—the assumedly unique and fragile balance of social mores and constitutional practices ensuing from having been physically and politically separated, albeit not isolated, from Europe and the rest of the world, as well as Britain’s supposed Anglo-Saxon identity. Statements such as those made by then-Home Secretary Theresa May, according to which, ‘compared to the countries of the New World and compared to the countries of Europe with their shifting land borders, we have until recently always been a country of remarkable population stability’6 conveys the idea of the UK as a traditionally self-contained ‘social eco-system’ not to be disturbed by alien elements. These narratives largely gloss over specific political responsibilities for the country’s failure relative to housing, the educational performance of the white working class and the financing of public services, with immigrants serving as an easy scapegoat for politicians of nearly all persuasions (Tilfold 2015). Reducing migration has been justified based on utilitarian reasons too, such as limiting the burden of an increased number of foreign residents entitled to social services, but demographic-related arguments remain 5 Asylum seekers are generally counted in British statistics as a subset of migrants and are included in official estimates of migrant stocks and flows. See Sturge (2020). 6 Independent (2015), ‘Theresa May’s speech to the Conservative Party Conference’, 6 October. Available at https://www.independent.co.uk/news/uk/politics/theresa-mays-speech-to-the-conservative-party-conference-in-full-a6681901.html.

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among the most distinguishing features of recent UK immigration policy (Cangiano 2016). The commitment to a certain level of net migration as a way to reduce immigration numbers was first made in 2007 by Conservative Party leader David Cameron. The decision ushered in a ‘population policy’ that marked a watershed, as until then, the government had pursued no strategy specifically aimed at influencing the overall size of Britain’s population, its age-structure or its components of change (Dixon and Margo 2006). Achieving a net migration target that would bring migration ‘from the hundreds of thousands back to the tens of thousands’ become the flagship policy of the Conservative-Liberal Democrat coalition government that took office in 2010, as well as the all-Conservative government elected in 2015 (Conservative Party 2010, 2015). The reduction was presented as ultimately aimed at preventing the UK population from reaching 70 million—a quota assumed to be the upper limit of sustainable population growth for the next two decades, given the country’s ‘objective’ limits in terms of space and resources (Cameron 2007). In fact, the target has never really come within reach, despite the government’s efforts. In order to reduce net migration, a number of measures have been introduced, including closing the ‘high skilled’ route for migration, setting a numerical cap on non-EU skilled migrant workers, as well a yearly income threshold for British nationals and non-EU nationals settled in the UK and wishing to bring non-EU spouses to the country. Moreover, efforts were made to reduce misuse of the student visa system; as a consequence, some educational establishments lost their right to sponsor non-EU students. Finally, a minimum income was introduced for non-EU labour migrants wishing to settle in the UK after five years. A Hostile Environment for Unauthorized Immigrants and the Response to the so-called Refugee Crisis of 2015 Measures introduced with the Immigration Acts of 2014 and 2016 extended authorities’ power to try to identify irregular immigrants, simplifying their removal and limiting individuals’ rights to appeal and access bail, imposing restrictions on opening banks accounts, obtaining driver’s licences, accessing health care or renting houses and reducing support for asylum seekers. The wide-ranging scope of the measures introduced

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new criminal offences (e.g. employment of unauthorized immigrants) and harsher civil penalties (e.g. illegal working) (Aliverti 2016). The ambition was to create a ‘hostile environment’ which would make life so difficult for individuals without permission to remain that they would voluntarily leave and not seek to enter the UK again. To make the hostile environment as far reaching and pervasive as possible, the ‘Hostile Environment Working Group’ (later given the less threatening name of ‘Inter-Ministerial Group on Migrants’ Access to Benefits and Public Services’) was created in 2012 and was charged with devising new forms of hostility. The Hostile Environment Working Group included a wide range of ministers7 so as to guarantee the pervasiveness of the initiative. The 2016 Act was passed by a newly formed parliament dominated by a firm Conservative majority, which while reaffirming its commitment to reducing the net migration target presented it as an ‘ambition’ rather than a promise (Wilkinson 2015). The UK’s response to the 2015 migration crisis can be regarded as an equally distinguishing feature of the current British migration policy system described above. The asylum policy implemented by UK governments in the 2010s is the result of the progressive restrictions and criminalizing intent put in place over the previous two decades—so much so that it has been dubbed an era of ‘open hostility’ (Brown 2019), in line with the general orientation of British migration policy as laid down in the 2014 and 2017 Immigration Acts. The main instrument of the UK response has been the Syrian Vulnerable Persons scheme, launched in January 2014, designed to provide support for refugees specifically on the basis of their needs and vulnerability rather than fulfilling a quota (UK Government 2015; McGuinness 2017). The government committed to resettling 20,000 people from refugee camps in Jordan, Lebanon, Iraq, Egypt and Turkey over the period from September 2015 to 2020 (Wilkins 2020). While successful in terms of the degree of integration achieved, the scheme has been criticized for the extremely limited number of people accepted relative to

7 Minister of State for Immigration; Minister of State for Care Services; Minister of

State for Employment; Minister of State for Government Policy, Exchequer Secretary to the Treasury; Minister of State for Housing and Local Government; Minister of State for Schools; Minister of State for Foreign and Commonwealth Affairs; Minister of State for Universities and Science; Minister of State for Justice; Parliamentary Under-Secretary of State for Health; Parliamentary Under-Secretary of State for Transport.

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Britain’s demographic size. No other country has received so few asylum seekers compared to their population. Moreover, it has been pointed out that, by focusing on the notion of ‘vulnerability’, the humanitarian configuration of a refugee worthy of care is implicated in two significant practices: ‘exceptionalizing a small group of Syrians as legitimate targets for compassion and constructing compassion itself as a rationed resource in a climate of anti-immigrant hostility, austerity and Brexit’ (Armbruster 2018). In addition to the Syrian Vulnerable Persons scheme, the government committed itself to providing resettlement for up to 3000 vulnerable children (and family members) from conflict situations in the Middle East and North Africa. A further scheme was introduced in Section 67 of the Immigration Act 2016 (known as ‘the Dubs amendment’), which required the government to relocate and support an unspecified number of unaccompanied refugee children currently in Europe. Neither of these schemes has been limited to Syrian nationals, but has applied to people affected by instability in the region (Walsh 2019). Significantly, the British humanitarian effort has been presented as a more effective alternative to EU plans for a quota system for resettlement (which the UK opted out of), which was accused of ‘doing nothing to address the underlying issues that the EU is facing and simply moving the problem around Europe’ (Brokenshire 2016). The UK, the EUMSG, and the Post-Brexit Unknown Although not a member of the Schengen border-free area, the UK is significantly affected by, and involved in, the latter, as evidenced by the establishment in 2003 of so-called juxtaposed border controls in France as a response to internal free movement across the continent. Moreover, the UK also participates in the policing and security aspects of Schengen. Under the Schengen Protocol,8 the UK may ‘request to take part in some or all of the provisions of this acquis’. The request entails the unanimous approval of the other Schengen states. The UK has challenged its legal exclusion from three EU border measures with a security dimension: the creation of Frontex (the UK has only observer status on the Frontex Management Board, yet it does contribute to practical cooperation and 8 Consolidated version of the Treaty on European Union – PROTOCOLS – Protocol (No 19) on the Schengen, Official Journal, 115, 0290–0292 (09/05/2008).

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has been involved in several joint operations), EU measures on biometric passports and the decision to allow police services to access data in the EU Visa Information System. However, the Court of Justice confirmed in 2007 that the UK’s participation in new aspects of the Schengen system is in effect subject to prior approval of the other Member States (Case C-77/05 UK v Council and Case C-137/05 UK v Council).9 As for the country’s participation in the Common European Asylum System, prior to the Treaty of Amsterdam, the EU set up the Dublin system to allocate responsibility for processing asylum claims, and passed several non-binding resolutions on asylum matters. The UK opted into the main post-Amsterdam asylum directives (the ‘first phase’), namely the Temporary Protection Directive, and those on asylum procedures, qualification and reception conditions adopted between 2000 and 2005. After that, the UK government chose not to fully participate in the reform process that led to the completion of the Common European Asylum Policy (CEAS), as per Protocol no. 10 on the Schengen aquis, with the Home Office stating: ‘[W]e do not judge that adopting a common EU asylum policy is right for Britain’ (Secretary of State for the Home Department 2011, 2). In particular, the UK maintained that the reforms enhanced the rights of all asylum seekers regardless of the validity of their claims. The government expressed ‘grave concerns’ about the following points: allowing asylum seekers to work after six months in the absence of a decision (nine months in the final adopted version); restrictions on the ability to detain asylum seekers in exceptional circumstances; and limits to fast-track procedures. The British government originally argued that, as an effect of its opt-out, the original first-phase measures would also cease to apply in the UK following the entry into force of the recast measures. The House of Lords’ EU Committee doubted the cogency of this claim, and eventually the government had to accept the continued application of the first phase norms, had it not opted into the recast ones (House of Lords European Union Committee 2012, para 179). The UK opted into the Dublin III Regulation, purported to address some of the problems outlined above; in particular, the reform provides for crisis-prevention and cooperation measures between Member States, 9 Available respectively at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/? uri=CELEX:62005CJ0077_SUM&from=SL and http://curia.europa.eu/juris/showPdf. jsf?docid=71916&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid= 134038.

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places limits on detention of asylum seekers and prevents the transfer of a person where there is a real risk of violating a fundamental right. The UK has also adopted the recast identification of applicants Regulation— establishing the European Asylum Dactyloscopy Database (EURODAC) to make it easier for EU States to determine responsibility for examining an asylum application by comparing fingerprint datasets—which works in tandem with the Dublin Regulation by collecting and storing fingerprints of asylum seekers or other irregular migrants, but also contains new clauses that allow Member States’ law enforcement authorities and Europol to further the criminalization of migration. Additional incentives to hold to a restrictive policy came from the results of the 2016 referendum on the UK’s withdrawal from the EU. With immigration serving as the main theme of the Leave campaign— built on effective, if simplistic, messages conflating free movement within the EU and immigration from third countries—the referendum results confirmed the growing salience of the issue in the eyes of voters under the promise of finally ‘taking back control’, including control of borders (Gamble 2018). As elsewhere in Europe, also in the UK campaigns hinged predominantly on migration affairs, blurring the distinction between recent movement from Eastern Europe into the UK (which admittedly set no limitation to free movement from new Member States after the 2004/2007 great enlargement), the (very small) number of refugees allowed to enter and earlier migrations from the Caribbean and South Asia (Outhwaite 2018). Moreover, differences between the justice claims underlying the respective (albeit often partly overlapping) expectations, needs and demands of migrants were more or less deliberately overlooked, as a result of the inability to implement effective policies or due to electoral interests. Given the current freeze in UK-EU negotiations on their future relationship, and the asymmetrical interpretation of the terms of their ‘divorce’, it is somewhat difficult to foresee the consequences of Brexit on the two parties’ cooperation in the immigration and asylum policy area. As noted by Jeney (2016), border control/management, or legal and irregular migration, are likely to experience the least impact, both on the UK and on the EU, as the former has largely stayed out of the instruments the latter has sought to use to facilitate legal migration of third country nationals to the EU, and is therefore already uneffected by the Directives on the status of long-term residents, the entry and stay of seasonal workers, researchers, students, highly skilled workers and the

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corresponding single procedure to reside and work in the EU. The UK has also abstained from participating in the bulk of EU legislation tackling irregular migration. Accordingly Britain is not bound by the so-called Returns Directive, aligning EU Member States’ legislation on expulsion and deportation procedures and laying down common minimum standards regarding those procedures. Nor does the UK take part in the Sanctions Directive, which places administrative and criminal penalties on those who employ illegally staying third country nationals. However, difficulties are likely to arise as far as readmission agreements are concerned. The EU has concluded a number of these treaties with third countries to take back their nationals—and, in some cases, any other person who holds a visa for that third country or who has transited, resided or has been present and whose presence in the EU is found to be unauthorized. The UK has participated in most of these treaties but, after Brexit becomes effective, it will have to renounce and renegotiate them—without the bargaining power provided by the EU. As for asylum policy, the UK opted into all the EU asylum law instruments which had been adopted during the first phase of the CEAS,10 but when the latter instruments were amended or recast the country decided to opt in only to the Dublin and EURODAC Regulations, and to the new instrument establishing the EU asylum agency (the European Asylum Support Office). After Brexit, no EU asylum law instruments will bind the UK. Hence, concerning the Directives on Qualification, Procedures and Reception Conditions, Britain will no longer be under the obligation to ensure the heightened and additional forms of international protection, procedural rights and guarantees—including subsidiary protection designed for people fleeing their own country where they faced serious harm—that these instruments afford to asylum seekers. Hence, asylum applicants in post-Brexit UK are likely to only be protected by the 1951 Geneva Convention Relating to the Status of Refugees, unless Britain actively incorporates EU law. Finally, the UK is going to lose access to EURODAC data and cease to benefit from the Dublin system—therefore losing the right to transfer asylum seekers back to those countries where the first application for asylum was/should have been made and to clear cases of dual or multiple applications.

10 The Qualification Directive, the Procedures Directive, the Reception Conditions Directive and the Dublin and Eurodac Regulations.

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Conceptions of Global Justice in British Migration Policy How does UK immigration policy fit into the global justice categories presented in the introduction? As plainly admitted by Dominic Cummings—the political strategist at the helm of the Vote Leave campaign and future Special Adviser to the Prime Minister—the constant drumming on the theme of uncontrolled immigration helped anti-EU campaigners win the 2016 referendum (Cummings 2017). Indeed, the immigration policy of all the Conservative-led governments in office since 2010 appears to be quite in line with a notion of Justice as nondomination. More recently, recovering full authority over national borders became a goal in its own right, as evidenced in a speech by thenHome Secretary Theresa May (2016): ‘all countries have the right to control their borders [and the duty to] commit to accepting the return of their own nationals when they have no right to remain elsewhere’. Accordingly, the still undefined Australian-style, points-based immigration system trumpeted by Boris Johnson seems to rest as much on an economic rationale as on the principle of Westphalian sovereignty, which predicates freedom from arbitrary interference from other states, but also from international political bodies or other kinds of non-state actors. Underlying this ethical stance is also an ‘essentialist’ conception of Britishness, which postulated at the same time the non-existence of Europe as a cultural subject, but also its existence as a threat to the British identity, eventually resulting in the UK’s exceptional Euroscepticism (Spiering 2015b). Based on these principles, the government sets stringent conditions to entry and stay—especially as, in doing so, it not only abides by a general principle but also claims to act on behalf of a public opinion portrayed as strongly hostile towards immigration of any kind—and often identified as ‘the people of Britain’ tout-court (Cameron 2007; Veil 2014). From this normative perspective, British firms’ demand for foreign labour—not only ‘the brightest and best’ referred to in the government’s plans, but also craftsmen and low-level skilled workers— has to give way to the pre-eminent obligations that each member of the British national political community (natural as well as legal persons) is supposed to have to each other.11 But outsiders’ entitlements are 11 BBC (2018), ‘Boris Johnson challenged over Brexit business “expletive”‘, 26 June. Available at https://www.bbc.com/news/uk-politics-44618154.

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outclassed when it comes to humanitarian immigration as well. The UK, a non-member of the Schengen Area, refused to take part in the Commission’s very limited and eventually largely ineffective asylum seekers’ 2015 redistribution scheme, opting for an equally limited, unilaterally launched resettlement programme designed for Syrian refugees only. Securitization aspects of immigration issues are also backed, more or less explicitly, by a Westphalian conception of justice. To name a few, starting in the late 1980s and increasingly so in the following three decades, a number of activities linked to immigration were turned into criminal offences, including irregular migrants’ unwitting transportation into the country, their employment and their renting of houses. Moreover, British governments started to apply a ‘deport first, appeal later’ scheme that was progressively extended to all migrants, unless it would cause them ‘serious irreversible harm’ (Partos and Bale 2015). In its pure form, Justice as impartiality is premised on the unconditional ethical value of human rights; accordingly, immigrants’ rights and liberties ought to be protected regardless of their motives for moving and their living circumstances. Justice claims of this kind are often sanctioned by cogent universal norms included in global and regional regimes of protection of migrants’ rights—most of which are more or less dutifully adhered to by the UK. The normative assumption that a dignified existence should be accorded to the refugee, encompassing political and humanitarian sympathy as well as physical sanctuary, became part of the UK and its allies’ common cause in advancing liberty worldwide (Barnett 2011; Barnett and Weiss 2011; Shaw 2015). This assumption, however, clashed with the fact that in a number of cases the British authorities have pushed political discretion to the limits of ethical correctness in order to pursue their political goals. The ultimate clash between pandering to (part of) the domestic public’s fears and the pursuit of global justice is epitomized by the ‘Dubs Amendment’ affair. The amendment, which initially had widespread public and media backing (McLaughlin 2017), required the government to continue to allow unaccompanied and separated children already in the EU to enter the country before applying for asylum after the Brexit process was completed. In so doing, the UK would have maintained the Dublin Regulation requirements designed to provide a safe and regular route to reunite minors with close family already settled in the country of destination. In fact, the amendment provided for significant discretion as to how many of them were to be actually admitted and

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a cut-off point for eligibility, and authorities implemented it in a deliberately slow and reluctant manner, particularly when dealing with children in Calais (Ibrahim and Howarth 2018).12 The government also consistently refused to accept unaccompanied children with no family ties unless they were Syrian refugees in the UN camps in North Africa (Wintour 2015). Indeed, with the demolition of the informal camps in Calais—the so-called jungle—Britain’s reticence in implementing the Dubs Amendment and the Dublin Regulations on displaced children became even more conspicuous (Rogers 2017), until in January 2020 the government decided to simply take the amendment out of the Brexit Bill, with the promise of future concrete plans for how it will continue to offer family reunion to child asylum seekers in Europe. As far as immigration and asylum policy is concerned, the UK’s decision to opt for its own unilateral resettlement programme for Syrian refugees, and to present it as an efficient alternative to the European Commission’s relocation programme, has had consequences in terms of justice as mutual recognition as well. This normative conception assumes as a moral yardstick the actual knowledge of the subjects of justice, who are no longer mere instances of general categories. Accordingly, immigration policies are ethically adequate to the extent that the individual and collective identities of ‘concrete others’ are mutually absorbed through practical interaction. Apart from failing to provide enough resources, both the Commission’s and the British government’s policy strategies assume that only Syrians are entitled to be assisted—subsuming other people striving to arrive to Europe into a nationality-based framework. Yet an approach like 12 Calais, together with Dunkerque, serves as an immigration control zone operated by the British police force on French soil (the French police do the same in Dover), as per the 2003 Le Touquet Treaty, a reciprocal arrangement between Belgium, France, the Netherlands and the United Kingdom whereby border controls on certain crossChannel routes take place before boarding the train or ferry, rather than upon arrival after disembarkation. In practice, the British authorities have the primary interest in this arrangement, as it enables them to block irregular migration from the continent. If a person is refused entry to the UK, or is found seeking to enter Britain clandestinely, they are handed over to the French authorities, to be processed under French law. The treaty also specifically provides that asylum claims are the responsibility of the state of departure, not the state running the control zone—so France is responsible for all asylum claims made in Calais, even to UK officials (Ryan 2016). In August 2016, there were an estimated 10,000 migrants living in dire humanitarian conditions in the large tent cities erected in Calais and nearby, with the largest groups coming from Afghanistan and Sudan.

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the UK’s, based as it is on a quantitative rationale—i.e. the (very low) cap on the number of refugees the UK is prepared to accept—refutes the ethical obligation of getting to know the ‘stories’, that is, the actual needs, aspirations and experiences of asylum seekers, and of the native population (instead of the ‘public opinion’) with whom they are going to interact. The concerns of ‘outsiders’ can only be addressed to the extent that they do not impinge on insiders’ interests and values—i.e. jeopardizing the British nation’s prosperity and social coherence. On top of that, neither immigrants nor natives have a say in how they are treated or even conceived of, in that none of their ‘stories’ are heard, negating the possibility to dispute and regularly revise policies, which is another requirement of justice as mutual recognition, in order to ensure that people do not suffer from structural injustice, which might occur despite the best intentions of decision-makers. In fact, the UK immigration policy does suffer from an in-built moral bias, as asylum seekers with no documents are targeted not based on their subjective (individual or collective) conditions—i.e. the actual reasons why they do not have their papers in order—but on their subsumption into the general status of irregular immigrants. In 2015, then-Home Secretary Theresa May addressed immigration campaigners and human rights lawyers, supporting their role in guaranteeing the effectiveness of the government’s fight against ‘illegal’ migration, but also alluding to the more general goal of allocating the country’s limited resources to immigrants as fairly as possible. The underlying argument here was that reducing immigration was the only way to pursue the higher ideals of social justice—with the hint of paternalism to be expected by one-nation conservatism. Moreover, the appeal bared the tightly integrated nature of the fight against irregular migration and immigration policy in general. No matter how messy and dreary the process that led to it, Brexit can be regarded not only as the final outcome of the interaction between short-term political strategies, parochial interests and unscrupulous communication campaigns, but also as the first concrete step towards an alternative idea of how Europe should be politically organized, with all that this notion entails in terms of approaching migrations. The moral argument underlying Brexit appears to be in line with a conception of justice as non-domination, given the emphasis on people’s self-determination, state sovereignty and the democratic process. As argued by Bellamy (2019), this is not incompatible with a democratically legitimate process of international integration. According to the authors,

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national popular sovereignty can be effectively combined with the pursuit of fair and equitable relations among states and their citizens—specifically reconnecting Member States’ demoi with their respective parliaments, to be much more strongly involved in the EU policy-making process (to the detriment of the European Parliament). Here, however, the sovereign states’ priority seem to systematically trump the people’s (insiders and outsiders) individual and collective concerns. Accordingly, the UK’s European politics is to be scaled down to a transactional model—one that draws on Britain’s traditional, and never completely abandoned, conception of the integration process as a matter of free trade, which should have never impinged on the political class’ deep-rooted desire to perpetuate a political system that protects elite power and a culture of limited democratic participation (Vines 2014). This lack of genuine mutual recognition also generates the risk that crucial distinctions, such as the difference between humanitarian and economic migration, are considered not within the framework of a moral discourse between the parties involved in the process, but only in light of the utilitarian reasons of the government. This has potentially serious repercussions for the UK’s ethical standing and the coherence of the EUMSG at large.

Conclusions The still largely open-ended destiny of the relationship between the EU and the UK, especially in the delicate policy area of immigration, entails a certain ambivalence that has characterized Britain’s immigration and asylum policy system throughout its historical evolution. In practice, the country has been quite open to human movement for long stretches of its history—whether immigrants happened to be persecuted people from ‘the Continent’, (former) subjects of the empire’s provinces after the end of World War II or European citizens from old and new Member States. This welcoming attitude has not necessarily been grounded primarily or even only significantly on moral reasons, as the opportunity to grant entry and stay to foreigners has also been constantly assessed in terms of its economic value. In the case of the UK this has always raised questions about the country’s colonial past; yet save for occasional gloomy

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predictions à la Lord Powell,13 even ‘racial relationships’ seem to have been managed with a great deal of common sense—the adjunct element to an immigration policy largely free from harsh nationalistic considerations—and proudly presented in these terms by policy-makers. Thus, the apparent lack of pragmatism that has led an otherwise not particularly xenophobic public opinion and a traditionally measured class of policymakers to designing conceptually and practically harsh measures, opting out of crucial parts of the CEAS and to leaving the EU altogether— mostly based on suggestions about ‘taking back control’ of national borders—still comes as a surprise. The UK has given up a membership that effectively guaranteed ‘the best of two worlds’ and has put itself in a position vis-à-vis the EUMSG, the Union and Europe as such which might generate unpredictable and ethically dubious consequences in the near future.

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13 The reference is to Conservative Member of Parliament Enoch Powell’s infamous 1968 speech in which he attacked mass immigration, comparing the growth of the country’s minority population to “watching a nation busily engaged in heaping up its own funeral pyre” (Friedersdorf 2018).

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CHAPTER 4

Migration, Asylum Policy and Global Justice in Greece Lena Karamanidou

Introduction In 2015, Greece was affected by a steep rise in arrivals of people crossing the sea border from Turkey, which resulted, in conjunction with the weaknesses of Greek asylum and reception systems, in a dramatic deterioration of reception conditions especially in the Aegean Islands (Spyropoulou and Christopoulos 2016; Iliadou 2019) while the European Union and its Member States (MS) also raised concerns regarding the country’s adherence to the Schengen regime of border controls and the implications of the domestic management of migration for European security (Ceccorulli 2019). Greek asylum and reception systems have been historically weak, reflecting tensions between a logic of securitization and normative commitments to refugee protection and human rights. In parallel, the process of Europeanization of asylum policy and the transposition of the Common European Asylum System (CEAS) instruments

L. Karamanidou (B) Department of Economics and Law, Glasgow Caledonian University, Glasgow, UK e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_4

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into domestic law over the last decade has created a framework of refugee rights and procedural standards to which the Greek asylum and migration policies should adhere. In reality, policies and practices have fallen short of normative and legal standards and have attracted widespread criticism by human rights organizations. These complex dynamics render Greece a highly interesting case study from the perspective of global justice. As a Member State with external borders, Greece has been a point of entry to the European Union (EU). In the context of the European Migration System of Governance (EUMSG), this has engendered increased responsibilities for controlling migration. In addition, the CEAS as well as European and international human rights instruments created obligations relating to the reception and protection of arriving migrants1 and asylum seekers. While EU legal frameworks and protection norms were transposed into Greek law, reflecting an ongoing process of Europeanization in the domain of human rights, migration policies prioritized border controls and prevention of entry over access to asylum, reflecting a logic of securitization that has constructed migrants as a threat to domestic security, public order and Greek national identity. At the same time, economic and administrative constraints undermined the full implementation of CEAS provisions and respect for human rights norms. These tensions point to a landscape characterized by significant contradictions in terms of global justice claims. This chapter provides an account of the development of Greek legislation and policy on asylum and migration over the last decade and evaluates them in terms of the three conceptualizations of justice—as non-domination, impartiality and mutual recognition—developed in the introduction of this book (see also Eriksen 2016; Sjursen 2017; see Lucarelli 2021). Using these three conceptualizations of justice as an analytical lens, it explores the extent to which they are embodied in Greek law and policy, the tensions between different justice claims, and violations of justice occurring both within Greek legal frameworks and their implementation. As Greek asylum and migration policy have been deeply embedded in the European Migration System of Governance (EUMSG), it explores the impact of both domestic and EU contexts on promoting or violating principles of justice. It argues that while the 1 I use the term migrant in an inclusive sense, to avoid the process of labelling and categorization embedded in European migration and asylum policies.

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adoption of CEAS and processes of Europeanization helped embed the logics of justice as impartiality and mutual recognition into the Greek legal framework, conflicting Greek and EU interests, policy priorities and normative logics have resulted in significant tensions which undermine adherence to principles of justice in the domestic context and impact the ability of the EU to embody such principles as a regional and global actor.

From a Country of Emigration to a Country of Asylum? Historical and Socio-Political Context Up until the 1990s, Greece was predominantly a country of emigration. Between the end of the Second World War and the 1970s, an estimated one million Greeks emigrated to industrialized countries—mostly to Germany, the United States (US), Australia and Canada (Kasimis 2012). Immigration to Greece consisted mainly of the return and settlement of ethnically Greek populations displaced from Turkey, Russia and Balkan countries in the 1920s and 1930s, including 1.4 million refugees from Asia Minor in 1923 (Voutira 2003). Small numbers of non-ethnic Greek migrants settled in Greece in the 1970s and 1980s and were employed mainly in construction, agriculture and domestic services (Gropas and Triandafyllidou 2007; Kasimis 2012). During the Cold War, Greece received refugees fleeing east European communist regimes. These refugees were resettled to Europe, the US and Canada, whereas refugees from Middle Eastern countries and Turkey would remain in Greece informally, often with no legal status (Black 1994). These parameters changed dramatically in the 1990s, signalling the transformation of Greece into a country of immigration. Migration movements were underpinned by the collapse of communist regimes and the ensuing political and economic instability in east European countries and former Soviet republics (Black 1994; Dimitriadi 2012). Migration from former communist countries was predominantly ‘economic’, and migrants—mostly Albanian—settled in the country either with legal or irregular status (Kasimis 2012; Gropas and Triandafyllidou 2007). Forced migration flows increased in the 2000s triggered by armed conflict and political instability in Asia, Africa and the Middle East (Dimitriadi 2012; Triandafyllidou and Maroukis 2012). For post-2000 migrants, Greece was both a country of transit and settlement. While many intended to move onwards to other EU countries, they also settled permanently or temporarily because of the relative ease of securing an income in

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the informal labour market, and lack of required papers and migration controls within the EU (Kasimis 2012; Triandafyllidou and Maroukis 2012). In a similar manner, Greece was also a key point of arrival for the migratory movements of 2015, as an estimated 862,138 migrants arrived in that year (UNHCR 2016a). The reaction of Greek society and the state to these new migration flows was predominantly hostile. Migration was securitized and depicted in the media and political discourse as a threat to the cultural identity, security and socio-economic well-being of Greek society, assuming the character of an ontological threat to the nation itself (Ventoura 2005; Karamanidou 2016). Greek national identity has been predominantly based on ideas of common descent, religion, culture and language, and historically excluded religious and cultural minorities not regarded as members of the Greek ethnos (Christopoulos 2012; Tzanelli 2006; Tsitselikis 2013). While since 2000 identity discourses have gradually become more inclusive in response to Greece’s transformation into a host country (Tzanelli 2006), the legacy of ethnocentrism and exclusion have continued to inform policies and attitudes towards migrants, and hostility and patterns of exclusion persisted and even intensified during the years of the austerity crisis from 2008 onwards (Papataxiarchis 2006; Triandafyllidou and Kouki 2014). Similarly, migrants have been depicted by the media and political elites as responsible for the rise of criminality in Greece and thus a danger to the security of Greek citizens (Pavlou 2009; Tsoukala 2005). Their presence has also been associated with threats to the employment of Greek citizens, even though political discourses have also stressed the economic benefits arising from migration (Pavlou 2009; Triandafyllidou and Kouki 2014). Post-2000, concerns over criminality, public order and employment became more strongly associated with migrants from the Middle East, Asia and Africa, both by the political mainstream and media, and by the ascending far right parties (Triandafyllidou and Kouki 2014). Equally, migration in Greece has been ‘illegalized’ since the beginning of its transformation into a country of immigration. The label ‘illegal immigrants’—‘lathrometanastes’ in Greek—has been used extensively in Greek discourse to refer to all migrants, whether their primary motivation for moving is economic or political and regardless of their actual legal status (Pavlou 2009; Skordas and Sitaropoulos 2004). The attribution of this label has been linked to the clandestine manner of entry

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of most migrants and domestic migration regimes that criminalize unauthorized entry. However, it is also a way to delegitimize claims of lawful presence or refugee protection (Karamanidou 2016). This has had serious implications for how asylum seeking is understood, since issues of protection and rights according to international and European law have often been considered less important than preventing unauthorized migration (Cheliotis 2013; Karamanidou 2016). While these domestic dynamics have shaped asylum law and policies, they cannot be understood without considering processes of Europeanization. Since the country’s accession to the European Union in 1981, increasing participation in EU institutions—in particular since the late 1990s—has reflected ‘westernizing’ and ‘modernizing’ tendencies within the Greek state and the self-perception of Greece as a liberal Western state (Tsoukalas 2002; Triandafyllidou and Kouki 2014). At the same time, Greek national identity has been ambivalent towards Europe, stressing belonging to both East and West, and reluctant to accept Western conceptions of human rights (Tsoukalas 1995). While Greece ratified key international and regional human rights instruments in the second half of the twentieth century—including the Geneva Convention, the Universal Declaration of Human Rights, the International Covenant of Social, Economic and Cultural Rights, and the International Covenant on Civil and Political Rights—domestic perceptions of human rights privileged the state as their source and guarantor (Pollis 1987; Stamoulas 2004). This differed markedly from the west European perception of human rights as individual and inalienable. The role of state institutions was primarily to protect the nation and national collective interests over the rights of individual citizens (Pollis 1987; Papapantoleon 2014; Tzanelli 2006). Thus, international human rights instruments were often contravened by the practices of state authorities and the judiciary, while the courts interpreted legislation in a manner which served the state’s interests rather than the rights of individuals (Pollis 1992). Security agencies, in particular, were seen as tasked with protecting the nation from external threats (Christopoulos 2014; Karamanidou 2016). In this context, processes of Europeanization challenged conceptions of rights rooted in the Greek domestic context and had a positive impact on strengthening regimes of human rights, benefiting, to an extent, minority and migrant populations affected by the ethnocentric and authoritarian philosophies of the Greek state (Tsitselikis 2013).

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The impact of Europeanization processes has been particularly evident in the domain of asylum and refugee protection. The transposition of the CEAS instruments since the mid-2000s aligned Greek asylum and migration law with European standards (Mavrodi 2007; McDonough and Tsourdi 2012), while membership of the Schengen zone in 2000 rendered Greece part of the European regime of internal free movement and external controls. In parallel, the processes of Europeanization reinforced the securitizing and illegalizing tendencies of the Greek context. While asylum and migration have been securitized within EU institutions for decades (Van Munster 2009; Huysmans 2006), the establishment of the Area of Security, Freedom and Justice with the Amsterdam Treaty (1999) and the expansion of the Schengen regime reinforced the perception of migration as a threat to the internal security of the European Union (Bigo 2005; Van Munster 2009; Walters 2010). At the same time, human rights frameworks such as the Charter of Fundamental Rights and the legal instruments of the CEAS have created a context that aims to ensure protection of migrants fleeing insecurity and respect for their human rights (Guild et al. 2008; Squire 2009). These conflicting tendencies—securitization versus protection of human and refugee rights—are at the core of the European migration system of governance (Squire 2009). Given the geographical position of Greece, EU migration and asylum policies caused increased pressure on Greece to control migration and prevent unauthorized entry into EU territory (Triandafyllidou and Maroukis 2012; McDonough and Tsourdi 2012). The Dublin system rendered Greece a first country of asylum with responsibility to prevent secondary movements, and a place where asylum seekers who had entered other Member States in an unauthorized manner could be returned (Karamanidou and Schuster 2012; Triandafyllidou and Maroukis 2012). These increased responsibilities, along with the obligation to comply with CEAS standards on asylum, engendered ambivalent responses. On the one hand, controlling migration and raising standards of refugee protection and asylum were seen as positive duties arising from the country’s membership of the EU (e.g. Hellenic Parliament 2011). On the other, they were seen as disproportionate and contradictory demands, while the Dublin regulation was often regarded as a regrettable decision which imposed burdens on the country. These complex and contradictory dynamics had an impact on the manner in which logics of justice have been both embedded and violated in the context of asylum and migration law and policy.

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Greek Asylum Policy and Justice: Between Europeanization and Persistent Weaknesses The first law on asylum and refugee protection was introduced in 1996, replacing the minimal provisions of a previous law introduced in 1991. Law 2452/1996 established normal and accelerated procedures and introduced the concepts of manifestly unfounded applications and safe third country, in line with developments in EU soft law.2 Three presidential decrees—189/1998, 266/1999 and 61/1999—regulated the employment, health care and accommodation of refugees and asylum seekers, and laid out procedures for the submission and examination of asylum applications (Papadimitriou and Papastergiou 2005; Sitaropoulos 2002). The Europeanization of asylum law accelerated in the late 2000s. The Reception Directive was transposed by Presidential Decree (PD) 220 in 2007, while the following year PDs 96/2008 and 90/2008 transposed respectively the Procedures and Qualification Directives. These instruments created a framework in line with the CEAS, ensuring a range of rights and procedural guarantees. The legal framework ensured that asylum applicants were protected from refoulement, established a fair asylum application determination procedure and appeals allowing the case-by-case examination of claims, and guaranteed a number of procedural safeguards such as access to legal aid and interpretation, the communication of key decisions and information in a language the applicants understand, and the obligation to provide decisions with full legal reasoning (Government of Greece 2008a, b). To this extent, the Greek asylum framework advanced logics of justice as impartiality and mutual recognition. It adhered to international and European protection norms and allowed for the consideration of applicants’ claims for protection and specific needs on an individual basis. However, the securitarian dynamics discussed in the previous section fostered policies and practices that undermined adherence to justice as impartiality and mutual recognition. Upon entering Greek territory, migrants were considered in breach of domestic legislation on unauthorized entry and liable for readmission or return unless they expressed their

2 Council Resolution of 30 November 1992 on Manifestly Unfounded Applications for Asylum (“London Resolution”), 30 November 1992; Council Resolution of 30 November 1992 on a Harmonized Approach to Questions Concerning Host Third Countries (“London Resolution”), 30 November 1992.

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intention to apply for international protection (Government of Greece 2005). The Hellenic Police were, until 2013, responsible for acceptance, examination and determination of asylum applications which, in conjunction with their security responsibilities, rendered them both ‘protector and prosecutor’ of potential asylum seekers (NOAS et al. 2010, 22; Amnesty International [AI] 2010; Papadimitriou and Papageorgiou 2005). Along with staff from their parent Ministry for Public Order, they were also heavily represented in the appeals procedure (AI 2010; Karamanidou and Schuster 2012). Opportunities for the judicial review of cases were limited to the Supreme Court, which could only decide on the legality of public decisions (Skordas and Sitaropoulos 2004; Karamanidou and Schuster 2012). These provisions departed from standards of objectivity and impartiality of asylum systems and reflected the absence of separation of powers of public authorities (Skordas and Sitaropoulos 2004; Karamanidou and Schuster 2012). However, the source of the significant shortcomings in terms of refugee protection and asylum procedures during this period was policy implementation. Policies and practices by Greek authorities frequently fell short of the legal standards enshrined in EU asylum law, especially in terms of access to asylum, reception conditions and detention practices, and the quality of procedures and procedural safeguards (AI 2010; UNHCR 2009). Following unauthorized entry, migrants were regularly arrested and detained in both specialized detention centres and police stations and faced difficulties in submitting asylum claims or expressing their intention to do so (AI 2010; European Court of Human Rights [ECtHR] 2011; UNHCR 2009). Greek security authorities frequently engaged in border practices such as forced expulsions and pushbacks at sea so as to prevent entry into Greek territory, a practice which persists in recent years especially at the Greek-Turkish land border (AI 2010; ARSIS et al. 2018; Greek Council for Refugees 2018; Human Rights Watch [HWR] 2008). Police authorities were reluctant to accept asylum applications at the border, believing that it would encourage irregular migration. There was also a lack of sufficient and specialized personnel to examine requests (Karamanidou and Schuster 2012; NOAS et al. 2010; UNHCR 2009). The absence of interpretation and legal assistance services also prevented migrants from being able to apply for asylum, while inadequate detention conditions acted as a disincentive to lodging an application, as this would prolong detention (FRA 2011; Karamanidou and Schuster 2012). Accessing the asylum system was equally problematic

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inland. The main police directorate receiving asylum applications—Petrou Ralli in Athens—at times received as few as 20 applications per week (AI 2010; Karamanidou and Schuster). A further weakness in the Greek asylum system was the quality of the examination of claims and decisionmaking. Asylum interviews would focus on the manner of entry rather than the applicant’s reasons for claiming international protection; the contents of interviews were often not recorded in an appropriate manner; and interviews would be conducted in English, a language that applicants or caseworkers might not be competent in, because of a shortage of interpreters (AI 2010; NOAS et al. 2010; UNHCR 2009). The legal reasoning behind decisions was often not recorded, and standardized formulations rather than those specific to individual cases were often used (Hammarberg 2008; UNHCR 2009). The result of these practices, which contravened the Procedures Directive, was that most applications were rejected, at both first instance and appeal stages. Recognition rates were exceedingly low—below 3% between 2009 and 2011 (Table 4.1)— while the determination procedure was also excessively long (AI 2010; Karamanidou and Schuster 2012). Conditions of detention and reception were another key issue highlighted by human rights organizations and NGOs. Asylum seekers and irregular migrants would be detained either in police cells, border guard stations or designated centres along the borders—normally converted warehouses or other disused buildings (HRW 2008; NOAS 2010; AI Table 4.1 Recognition rates at first instance in Greece and EU, %

Year

Greece

EU

2009 2010 2011 2012 2013 2014 2015 2016 2017

1 3 2 0.8 3.8a /15.5b 28.7 47.4 29.1 46

27 27 25 25 32 33 45 61 N/A

a Hellenic Police b Asylum Service

Source Eurostat, ESI, Asylum Service

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2010). In most such establishments, there were conditions of overcrowding and insufficient hygienic arrangements as well as inadequate access to food and outdoor space (Convention for the Prevention of Torture 2009). Further, asylum seekers outside the country’s limited accommodation facilities were not entitled to material or income support. Thus, reception practices fell short of the standards laid out in the directive, pointing to failures to adhere to European and international human rights norms. Practices of detention were equally controversial. Asylum seekers in border areas would be detained until their applications were examined—normally through accelerated procedures and detained with a view to deportation even after they had applied for asylum. Decisions to detain, mainly with the aim of deporting migrants, were issued by local administrative courts and were often inconsistent with asylum law (ECtHR 2009, 2017). While EU and Greek law do allow detention, the transposed Procedures Directives of 2005 and 2013 state that the detention of asylum seekers should be exceptional and advises against the detention of unaccompanied minors and pregnant women (Government of Greece 2008a, 2016a). Detention also applied to vulnerable groups and unaccompanied minors (AI 2010). These practices suggest tensions with conceptualizations of justice as mutual recognition, which dictate the consideration of migrants’ specific experiences and needs. From the perspective of adherence to principles of justice, the policies and practices outlined above constitute serious violations of EU legal standards, international human rights law and domestic legislation. Violations were so extensive that they were widely criticized by human rights bodies such as the Council of Europe (Hammarberg 2008, 2010), the Committee for the Prevention of Torture [CPT] (2009, 2011), the National Commission for Human Rights (2008, 2010), NGOs (AI 2010; NOAS et al. 2010), European Union institutions (Council of the European Union 2012; European Commission 2012, 2014) and in a series of decisions by the ECtHR (e.g. S.D v. Greece [2009], A.A v. Greece [2010], Rahimi v. Greece [2011]). More significantly, the M.S.S v. Belgium and Greece ruling found Greece in breach of Article 3 of the ECHR because of the conditions of detention and reception that amounted to ill-treatment, and of Article 13 because of the deficiencies of the asylum procedure, the lack of an effective remedy and the resulting risk of refoulement (ECtHR 2011; Psychogiopoulou 2015). These findings were reiterated in the EC-4/11 and EC-411/10 judgements of the

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Court of Justice of the European Union [CJEU] which eventually led to the suspension of Dublin returns to Greece from 2011 until 2017. The Court judgements and widespread criticism signalled a turning point in Greek asylum and migration policy since they triggered an extensive reform of the asylum and reception systems. Law 3907/2011 introduced significant reforms, such as establishing independent asylum and first reception services which took over responsibility from the Hellenic Police and an independent appeals authority and transposed the Returns Directive (Government of Greece 2011). It outlined specific procedures for the identification, registration and reception of asylum seekers, with specific reference to identifying and catering to the needs of vulnerable groups and unaccompanied minors (Government of Greece 2011). The recast Procedures and Qualifications Directives were transposed in 2013. Following the operation of the asylum and first reception services in 2013, some aspects, such as the quality of decision-making and procedural safeguards, improved considerably (EMN 2014). However, the deficiencies of the Greek asylum and reception systems, both before and after the 2011 reform, have been attributed to a range of domestic factors. Before the 2011 reform, the concentration of powers with the Hellenic Police and the Ministry for Public Order reflected the absence of a separation of powers that characterized state organizations in Greece (Pollis 1992; Papapantoleon 2014) and was a factor undermining adherence to principles of justice. While this weakness was addressed by the establishment of the independent asylum, reception and appeals authorities in 2011, administrative and economic weaknesses still affected the implementation of the CEAS. The complex and disorganized nature of the Greek public administration inhibited the implementation of asylum standards transposed into Greek law and hindered the absorption of EU funding (Papageorgiou 2013). Underinvestment in asylum and reception systems led to understaffing and the lack of specialized, dedicated personnel and resulted in significant delays (Karamanidou and Schuster 2012; Papageorgiou 2013). Even after the 2011 reform, reception capacity remained extremely limited due to financial constraints and underinvestment, with only two reception centres operational by the end of 2014 (EMN 2014). Access to the asylum procedure was impeded by a persistent lack of resources exacerbated by the austerity crisis and failures of administrative departments (AI 2016a; Papageorgiou 2013). Reluctance to improve the country’s asylum system was also underpinned by

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the perception that Greece is predominantly a transit country and therefore has limited obligations to create efficient asylum or reception systems, a belief that persisted even after 2015 (Spyropoulou and Christopoulos 2016). However, these weaknesses also point to a lack of political will to invest in creating an asylum and reception system consistent with EU standards, in parallel with a continuous commitment to prioritizing control-related measures (Spyropoulou and Christopoulos 2016; Karamanidou and Schuster 2012). The transposition of the Returns Directive into Greek law excludes migrants ‘appre-hended or intercepted by the competent authorities in connection with irregular crossing by land, sea or air of the external border’ (Returns Directive, Art 2, par. 2a; Law 3907 Art 17 par 2a) from its remit. While some controversial practices such as forced expulsions receded after 2011, the 2009–2012 government led by the centre-left PASOK party expanded the country’s border control and return infrastructure in cooperation with EU agencies such as FRONTEX, and constructed a 12.5-kilometre fence along the Greek-Turkish border (Karamanidou and Schuster 2012; McDonough and Tsourdi 2012). The coalition government elected in 2012, led by the conservative New Democracy Party, pursued a security public order agenda of intensifying border and internal controls, including a pre-return detention centre and ‘cleaning up’ operations in the centre of Athens, and the arrest-and-deport initiative Operation Zeus3 (Cheliotis 2013; Ilias et al. 2019). Securitized perceptions of migration as a threat and hostile views towards migrants among Greek officials negatively affected the implementation of EU standards and translated into policies prioritizing control over access to asylum and refugee protection (Papageorgiou 2013; Tsoukala 2005). The securitized tendencies did not only inform actions of security bodies, but also rulings of Greek administrative courts which, for instance, upheld decisions on detention on the grounds of public security and order (ECtHR 2009, 2017). The persistent shortcomings of reception capacity were highlighted when arrivals increased dramatically in 2015. Humanitarian reception services were mainly provided by non-governmental organizations

3 Operation Zeus was introduced in summer 2012 and consisted of stopping and checking the documents of migrants—or individuals that appeared of non-Greek ethnicity—in Athens and other major Greek cities.

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(NGOs) and informal networks of volunteers and solidarity organizations (Iliadou 2019; Oikonomakis 2018), while concerns were raised over the identification and registration of migrants (Spyropoulou and Christopoulos 2016). The introduction of the hotspot approach propelled by the EU was aimed at addressing both issues, while additional funding and the relocation system of asylum seekers’ distribution among Member States were aimed at addressing pressures in countries of entry. The regime created by the hotspot approach and the European Agenda for Migration of May 2015, and since March 2016 by the EU-Turkey statement, triggered several legal and policy changes. Law 4375/2016, passed in April 2016, introduced blanket detention for 25 days of asylum seekers in hotspots and later their geographical restriction to the island where the Reception and Identification Centres are located (AIDA 2017; Government of Greece 2016a, Art 14; Dutch Council for Refugees et al. 2016). The law introduced an “exceptional” procedure for examining applications in border areas. It has considerably shorter time limits than existing normal and accelerated procedures (AIDA 2017; HLHR 2016).4 Both changes were criticized for being at odds with existing CEAS standards, while exceptionally short time limits are not conducive to a proper examination of claims (HLHR 2016; Greek Council for Refugees [GCR] 2016). Further, it allowed European Asylum Support Office (EASO) personnel to participate in asylum interviews and admissibility procedures (AIDA 2017; ECCHR 2018; HLHR 2016). EU and Greek responses to the 2015 migratory movements also triggered the introduction of new policies and practices which have been criticized for violating human rights and asylum standards (European Parliament 2017; HLHR 2016; Greek Council for Refugees 2016). Turkey was designated a safe third country and safe first country of asylum, where asylum seekers could be returned. Both the designation and application of the concept were highly controversial. Turkey did not provide protection according to the standards of the Geneva Convention, since it has imposed a geographical limitation to its scope, and effective access to protection for non-Syrians was not guaranteed as the Temporary Protection Law passed in 2016 was limited to Syrian nationals (AI 2016b; Rygiel et al. 2016). Secondly, the concept of safe 4 Asylum seekers are given one day to prepare for their interview. If the application is rejected within a time limit of 48 hours, the applicant has 5 days to appeal, and the appeal is examined within 3 days of submission (Government of Greece 2016a).

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third country was applied through admissibility procedures, and asylum applications were rejected on this basis by Asylum Service and EASO personnel (HLHR 2016; Leivaditi et al. 2020). Decisions appeared to have used a standard formulation that Turkey is a safe third country without providing detailed reasoning, a practice contradicting the stipulations of CEAS and domestic law, whereby applying the concept of the safe third country requires individual assessment of the circumstances of each applicant and detailed written justification (European Parliament and Council 2013; European Council on Refugees and Exiles [ECRE] 2016; HLHR 2016). EASO staff involved in both asylum and admissibility interviews have been criticized for failing to adhere to procedural standards and undermining access to the asylum procedure (ECCHR 2018; Leivaditi et al. 2020). In addition, applications have been prioritized according to nationality (FRA 2016). The registration and examination of applications by Syrians were prioritized, while applications by persons of nationalities with recognition rates below 25% in the EU such as Pakistan, Bangladesh, Morocco, Algeria or Tunisia were de-prioritized and examined with the accelerated procedure (AIDA 2017; FRA 2016). This practice contravenes EU and domestic legislation that dictates the examination of applications on their individual merits (European Parliament and Council 2013; Greek Government 2016a). Further, in order to increase returns, the government passed a law in 2016 replacing members of Appeal Committees, mainly experts in refugee protection and human rights, with committees comprised of two judges and an expert indicated by the UNHCR (Government of Greece 2016b; AIDA 2017). In March 2017, a further legal reform allowed the involvement of EASO staff in Appeals Committees as rapporteurs (AIDA 2018). Policies and practices of reception and detention under the hotspot approach also led to violations of legal standards, similar, if not worse, to problematic issues in earlier periods. Delays between the end of registration and identification procedure and the beginning of admissibility and asylum procedures led to prolonged periods of detention and overcrowding (Dutch Council for Refugees et al. 2016; Greek Helsinki Monitor et al. 2019; Leivaditi et al. 2020). The geographical restriction of migrants to the hotspot islands further exacerbated overcrowding, especially after an increase in arrivals in 2019 (Greek Helsinki Monitor et al. 2019; Leivaditi et al. 2020). By the end of that year, the populations in hotspots far exceeded their capacity (FRA 2019). Living conditions

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in reception and detention places in the hotspot islands have been characterized by a lack of appropriate shelter, with camps being infested by vermin, lack of sanitation, tents and containers without heating, lack of health care and inadequate cooking or catering arrangements (Citizen’s Ombudsman 2017; Greek Helsinki Monitor et al. 2019; HWR 2016). Several deaths have occurred as a result of the conditions in hotspots (Citizen’s Ombudsman 2017). In addition, migrants subject to the hotspot system face frequent harassment and violence by the police and local populations, often motivated by racism (AIDA 2019; Greek Helsinki Monitor et al. 2019; Iliadou 2019). Concerns have been raised regarding the identification of migrants belonging to vulnerable groups (AIDA 2017, 2019; Citizen’s Ombudsman 2017). Specifically, reception procedures relating to medical examinations and determination of needs for psycho-social support, as well as the identification and age determination of unaccompanied minors, are not always followed in hotspots, a criticism also directed at EASO (Citizen’s Ombudsman 2017; ECCHR 2018; Leivaditi et al. 2020). Thus, unaccompanied minors and other persons with vulnerabilities are also subject to the conditions described above in the islands as the geographical restriction can be lifted only in cases of positive decisions and for those recognized as vulnerable (AIDA 2019; Leivaditi et al. 2020). Similarly, unaccompanied minors in the mainland have been detained for excessive periods of time in unsuitable facilities such as police stations and in reception centres without being separated from adults (Citizen’s Ombudsman 2017; FRA 2016; Greek Helsinki Monitor et al. 2019). In 2019, the ECtHR issued two decisions against Greece relating to the reception and detention of unaccompanied minors (ECtHR 2019a, b).

The Many Contradictions of Justice: Evaluating Greek Asylum and Migration Policy and Practice Asylum and migration policies and practices in the Greek context present a complex relationship to the three categories of justice presented in the introduction to this book (Lucarelli 2021). To some extent, they have reflected a concern for respecting human rights and taking into consideration the asylum seekers’ specific needs, embodied in the domestic legal framework which, while not without limitations, transposed European and international standards of protection and asylum procedures.

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Yet the CEAS framework, domestic law and international human rights instruments have been consistently violated. Both before and after the 2011 reform, potential asylum applicants faced significant difficulties in accessing the asylum procedure. Although procedural safeguards were strengthened after the introduction of Law 3097/2011 and the transposition of the Recast Qualifications and Procedures Directives, and the quality of decision-making improved following the establishment of the independent asylum service, the asylum process was fraught with delays, inability to process applications in a timely manner, and an underfunctioning appeals system. Practices of detention frequently exceeded the limits imposed by EU and domestic law, violating provisions stating that asylum seekers should not be detained for long periods of time, and extended to unaccompanied minors. Reception conditions consistently and extensively violated CEAS provisions, and despite the establishment of the First Reception Service in 2013, the availability of reception centres and accommodation facilities remained limited (EMN 2014; Greek Helsinki Monitor et al. 2019). Since 2015, the policies of containment resulting from the EU-Turkey statement, the hotspot approach and the closure of the Balkan route significantly worsened both reception conditions and access to asylum, engendering more violations of justice. To this extent, Greek asylum policies did not adhere to the conceptualizations of justice as impartiality and mutual recognition since they failed to safeguard the rights of asylum seekers under international law and the CEAS (Ceccorulli and Lucarelli 2017). Policies and practices of asylum and reception were not consistent with rights and procedural safeguards as stipulated in EU asylum law—in particular the Procedures and Reception Directives—thus failing to align with supranational institutional forms (Sjursen 2017). More importantly, the conditions of reception and the absence of procedural and judicial safeguards, as demonstrated by the M.S.S v. Greece and Belgium and other ECtHR rulings, engendered direct violations of universal human rights regarding the prohibition of torture, liberty and security, and an effective remedy. Further, practices and policies did not adhere to the principle of justice as mutual recognition. By not having effective procedures in place, the Greek asylum system failed to take into account the individual experiences and claims of applicants and imposed categories through asylum decisions, court judgements and border control practices in an arbitrary manner not consistent with EU or domestic law. Greek authorities failed to consider the vulnerabilities of migrants—as would be necessary if advancing a ‘mutual recognition’

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perspective on justice—especially in the case of unaccompanied minors and other vulnerable groups. New legal measures and policies undertaken during the post-2015 period equally pose further sets of problems in terms of justice. Considering Turkey a safe third country despite widespread concerns by human rights organizations and NGOs has raised doubts regarding the extent to which the EU-Turkey statement is in accordance with the principles of the Geneva Convention and the CEAS framework. Applying the criterion of nationality to admissibility and determination procedures and the blanket application of the safe third country concept contradicts the requirement for individual assessment of the circumstances of each application (ECRE 2016; UNHCR 2016b). It has facilitated the implementation of returns to Turkey and thus the potential for chain-refoulement (AI 2016b) contrary to the provisions of the Geneva Convention. The policies of blanket detention and geographical restrictions on islands imposed through the hotspot regime contravene the stipulations in CEAS instruments for avoiding the excessive detention of asylum seekers, especially in relation to unaccompanied minors and vulnerable groups. Relocation policies deny the subjectivity of asylum seekers as they do not allow them to articulate their preferences in terms of the Member States in which they would like to live (European Parliament 2017). Thus, it can be argued that they do not reflect conceptions of justice as impartiality, since they are not consistent with the universal application of human rights standards as embodied in European and domestic law (cf. Ceccorulli and Lucarelli 2017). Further, they do not fully support conceptualizations of justice as mutual recognition, since they often fail to consider the specific identities and experiences of asylum seekers, in particular of vulnerable groups and unaccompanied minors, relying instead on the application of group characteristics (nationality) and policy-created categories (the application of admissibility with regard to Turkey as a safe third country). Policies and practices also suggest contradictory commitments to a cosmopolitan logic on the one hand and a Westphalian logic on the other. As mentioned earlier, the Greek state gradually adopted systems of ‘rights and duties that transcend[s] state borders’ (Sjursen 2017, 2) through its membership in the European Union, which embodied, even with shortcomings, perceptions of justice as impartiality and mutual recognition. It also made intermittent efforts to improve the asylum and reception systems and policies through, for example, the 2011 reforms. However, Greek asylum and migration policy also continued to be guided by the

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logic of controlling migration combined with a perception of the state as the main authority granting rights (Pollis 1992). Following a logic of non-dominance, they interpreted the duties of the state towards asylum seekers as primarily humanitarian duties of beneficence (Eriksen 2016; Sjursen 2017; see Lucarelli 2021). Political discourse on asylum, for example, stressed humanitarian obligations towards asylum seekers while at the same time expressing a strong commitment to controlling migration (Karamanidou 2009, 2016). Yet these attitudes did not always result in systems and practices that ensured the impartial application of human rights and protection norms. At the same time, policies in the context of EUMSG and their interaction with the Greek context have been equally conducive to violations of justice. The Dublin system has created significant burdens for states with external borders such as Greece, despite its original conception as a burden sharing mechanism (Ceccorulli and Lucarelli 2017). To this end, it can be perceived as a form of ‘institutionalized’ domination. In the context of Greece, this policy exerted pressure in the form of examining applications on an asylum system hardly able to cope with existing levels of asylum applications (McDonough and Tsourdi 2012). Further, the securitizing tendencies inherent in the EU system of migration (Squire 2009; Van Munster 2009) reinforced the domestic securitized perception of migration and legitimated policies prioritizing controls over refugee protection. The EU Commission and Council of Ministers, for example, while critical of human rights deficiencies, consistently assisted the efforts of Greek authorities in strengthening border controls and increasing capacity for returning migrants (Council of the European Union 2012; European Commission 2016a), for example, through the participation of FRONTEX in border control and migrant identification operations (Carrera and Guild 2010; McDonough and Tsourdi 2012). Similarly, policies implemented within the context of the hotspot approach and the EU-Turkey statement are underpinned by the securitarian objectives of preventing the entry of refugee flows and facilitating returns to Turkey, rather than guaranteeing access to refugee protection (Spyropoulou and Christopoulos 2016). Thus, legal reforms and policies introduced since 2015—such as the border and admissibility procedures and the geographical containment in the Aegean Islands—in order to implement the EU-Turkey statement and the hotspot approach have further undermined the capacity of the Greek asylum system to operate in a manner that is guided by the logic of justice as impartiality.

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By admission of Greek officials, changes in law and policy since 2016 were adopted in order to implement the EU-Turkey statement (Ministry for Migration Policy 2016), sometimes despite the objections of Greek authorities. In this respect, while the language of EU documents often suggests positivity towards and the consent of the Greek state—such as in the wording ‘has agreed’ or ‘supported’—interventions by EU institutions may demonstrate increasing levels of domination since the European Union appears to dictate policy to an extent that goes beyond the existing legal framework of the CEAS. The European Union even appointed a representative—Maarten Verwey—to oversee policy responses (European Commission 2016b). In addition, the extent to which Greece benefits, or rather is not harmed (Eriksen 2016; Sjursen 2017; see Lucarelli 2021), by the post-2015 policy landscape is highly questionable since containment policies engendered more pressures on already stretched asylum and reception systems. Hence, it is doubtful whether it avoids causing harm consistently with justice as non-domination, or is effective in ensuring the universal and impartial application of human rights and asylum standards. In contrast, the policy of containment of migrant populations in Greece, preventing them from moving onwards to other European countries, violates both principles of impartiality and mutual recognition: it opposes the agency of migrants and subjects them to a violent border regime, with inhumane living conditions and limited access to protection.

Conclusion The case of Greece demonstrates how interactions between the European System of Migration governance and the particularities of the domestic context can result in asylum laws, policies and practices that are deeply contradictory in terms of justice. The Europeanization of Greek asylum and migration policies, and more specifically the transposition of the CEAS, resulted in a legal framework which despite its many shortcomings provided for fair and impartial procedures which allowed for individual experiences and vulnerabilities to be considered during the adjudication of claims to justice, and guaranteed essential rights and procedural safeguards. To this extent, it has been broadly consistent with logics of justice both as impartiality and mutual recognition. Yet, asylum and migration policies and practices in Greece have been consistently at odds with these

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conceptualizations of justice and have resulted in the persistent violation of human and asylum rights and CEAS standards. The specificities of the domestic context account in part for these violations. On the one hand, Greek political authorities have remained committed to EU membership. On the other, legacies of state authoritarianism, exclusionary ethnocentric conceptions of national identity, and the securitization and illegalization of migration privileged policies and practices aimed at controlling and deterring migration. These tendencies mirrored and were reinforced by the contradiction between providing refugee protection and securitarian imperatives of protecting the borders of the European Union against migration (Bigo 2005; Squire 2009; Van Munster 2009) which are deeply embedded in the EUMSG. Since 2015, in particular, it has become evident that EU policies such as the EUTurkey statement and the hotspot approach are at the root of systematic and extensive violations of justice in Greece. Thus, Greece represents a unique and significant case within the EUMSG since it illustrates that both logics of justice and violations are reinforced through the interaction between domestic dynamics and EU policies.

References AIDA. (2017). Country Report Greece. http://www.asylumineurope.org/rep orts/country/greece. Accessed 26 January 2020. AIDA. (2018). Country Report Greece. https://www.asylumineurope.org/rep orts/country/greece. Accessed 26 January 2020. AIDA. (2019). Country Report Greece. https://www.asylumineurope.org/rep orts/country/greece. Accessed 26 January 2020. Amnesty International. (2010). The Dublin II Trap: Transfers of Asylum Seekers to Greece. London: Amnesty International. Available at https://www.amnesty. org/en/documents/EUR25/001/2010/en/. Accessed 27 January 2017. Amnesty International. (2016a). Trapped in Greece: An Avoidable Refugee Crisis. London: Amnesty International. https://www.amnesty.org/en/documents/ eur25/3778/2016/en/. Accessed 2 January 2017. Amnesty International. (2016b). No Safe Refuge: Asylum Seekers and Refugees Denied Effective Protection in Turkey. https://www.amnesty.org/en/docume nts/eur44/3825/2016/en/. Accessed 2 January 2017. ARSIS, Greek Council for Refugees, & HumanRights360. (2018). The New Normality: Continuous Push-Backs of Third Country Nationals on the Evros River. https://www.gcr.gr/en/news/press-releases-announcements/item/ 1028-the-new-normality-continuous-push-backs-of-third-country-nationalson-the-evros-river. Accessed 26 January 2020.

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CHAPTER 5

Italy and Migration: Justice on this Side of the Mediterranean Michela Ceccorulli

Introduction It is difficult to think of another policy issue which has been simultaneously so relevant and divisive as migration has been for Italy over the last decades. The relevance and divisiveness of the issue have, in turn, been particularly magnified by some peculiarities characterizing the Italian case, which this chapter aims to uncover. A state of ‘emergency’ and its (paradoxical) continuity have typified Italy’s governance of migration1 with regard to regulating legal access to and presence in the country, readiness to cope with massive and unexpected arrivals on its shores and the ability to offer proper reception and integration to the migrant population. The impression that the country has often neglected the destiny assigned to it by geography is epitomized by the absence of a comprehensive political discussion that goes beyond 1 See on this point Castelli Gattinara (2017).

M. Ceccorulli (B) University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_5

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the emergency, to the overall potential impact of the many facets of the phenomenon. Ultimately, this has favoured a vacillating stance, whereby security and humanitarian policies (both drawing on coexisting understandings of the matter) have not been properly combined (Cerno 2017). Using the three conceptions of justice (non-domination, impartiality and mutual recognition) explained in the introduction of this work (Lucarelli 2021) is of particular relevance in the Italian case as these conceptions help capture different (and sometimes conflicting) priorities in the governance of migration, some inherent but scarcely developed, others that have arisen over time and which have emerged in all their bluntness over the course of the last decades. The chapter opens with an overview of migration and its meaning for Italy, with an attempt to sketch out the main peculiarities which have characterized and still operate in Italy, and to inform with regard to the real and perceived figures of the phenomenon. It then goes through the existing provisions on migration and asylum, also emphasizing the problems caused by the lack of proper direction. An evaluation in justice terms is then provided and a final section concludes the work.

From a Country of Emigration to ‘The Gateway to Europe’ The governance of migration is open to different challenges, depending on the context in which the phenomenon takes place, its magnitude and its reception by public opinion. The next two sections specifically look into these aspects which render Italy a case study of extreme relevance. The Inevitably Peculiar Italian Approach to Migration Italy is first and foremost a Mediterranean country and perceives itself and its strategic interest to be strongly related to the fate of the Mediterranean region and to what may affect this area (Gentiloni 2017). This is something which renders Italy’s attention and priorities inevitably distinct from those of other European countries. In contrast to other European states, Italy has prevalently been a country of emigration for the past century, the origin of massive outflows towards other continents (the Americas, primarily) and other European states (including Belgium and Germany). Immigration in Italy, on the other hand, was mainly an ‘internal’ phenomenon during this period: significant mobility towards the

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northern regions has made the fortune of growing cities such as Milan and Turin but has simultaneously deprived southern regions of important resources, a divide which persists in the country. However, in the 1960s and the 1970s, inflows from third countries were not completely lacking, albeit not massive. Self-perception as an ‘immigration’ country arrived only later; or, more likely, Italy failed to fully recognize the small but continuous signs of its progressive shift to a country of destination, determined in particular by the impressive economic boom experienced from the 1950s onwards.2 The country simply did not react to this metamorphosis and until the late 1980s attempts to introduce comprehensive legislation on immigration were unsuccessful. The consequence of this belated adaptation implied having to cope simultaneously with the increasing irregular arrival of migrants lured by work opportunities, the real need for more migrants3 and the absence of legal channels of entry, the opening of which was rendered progressively more difficult by the changing political landscape. In the 1990s, Italy witnessed deep political turmoil caused by the arrest or accusation by the judiciary of a large part of the political class of the so-called Prima Repubblica. The aim was to reveal the thick layer of political corruption in the country (‘tangentopoli’ or Bribesville). This political chaos led to the collapse or weakening of many political parties present up to that moment. However, this had the unintended effect of casting away a fairly widespread and generally not hostile view of the phenomenon of migration, mostly viewed through the lens of the history of Italian emigration (Einaudi 2007, 137). Turning a blind eye to Italy’s recent past as an emigrating country, the ‘new’ political actors started to view the situation through the lens of an ‘immigration country’, strongly emphasizing the fears of the host community rather than the needs of the immigrants. Indeed, this phenomenon has been assigned different nuances, according to the political colours in power. But bipartisan empathy towards migrants was probably gone forever. Concurrently, Italy was taking its first steps to move in line with the common European Union (EU) policy on migration and asylum, a shift that has possibly contributed to a different understanding of the phenomenon (see below) 2 Quite remarkably, Einaudi (2007, p. 51) defines this period as ‘Immigration without politics’. 3 The debate on migration and the demographic destiny of Italy has been widely discussed; see among others Livi Bacci (2017).

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(Geddes and Scholten 2016, 184). All this paved the way not only for the ‘politicization’ of migration (i.e. the start of a debate in the political landscape), but also for its ‘securitization’ and ‘criminalization’, due in particular to the rising relevance of the Northern League party, able to propose itself at the time as a fresh political movement, uncontaminated by the corruption scandals of mainstream political parties. The politicization of migration came hand in hand with greater attention to the phenomenon from the media and in public debates. Predictably, the ‘cycles of fear’ affecting public opinion have coincided with ‘electoral and political cycles’. Moreover, the country has been in conditions of permanent electoral campaign for the last decades which means that fears associated with migration have been a constant in the public debate (Diamanti 2017). Many commentators agree that the media has contributed to heightening the debate, especially after the politicization of migration in the late 1990s (Sciortino and Colombo 2004), and that mainstream newspapers and weekly news magazines alike have often reproduced stereotyped frames of the issue (Pogliano 2014; Musarò and Parmiggiani 2014; Furia 2016). It has been common practice for Italian public opinion to refer to irregular immigrants as ‘clandestini’ (clandestine). In the past, the term was fairly neutral, but over time the word has taken on a decidedly pejorative connotation. Today, the term is frequently used by anti-immigration parties and movements to underline the ‘irregularity’ of migrants’ arrival and presence in the national territory. Public opinion has mainly been focused on the risks posed by migrants; on the other hand, movies and documentaries on the issue such as Berlin Bear winner Francesco Rosi’s ‘Fuocoammare’ (Fire at Sea) contribute to maintaining the centrality of migrants as human beings, but their influence in the country remains marginal. Two key issues have become intertwined with the phenomenon in recent years and have sharpened positions. First, the economic crisis, which has hit Italy in a significant way. The rise in migrant inflows into the country and the concomitant economic recession have given new vigour to ‘protectionist’ claims (‘Italian citizens first’) (Dalla Zuanna 2016). This was perfectly exemplified by the debate that followed the launch of Mare Nostrum in 2013, an operation with relevant humanitarian purposes deployed after a massive increase in the death toll in the Mediterranean. The huge costs of the operation compared to the economic downturn raised internal discontent (Panebianco 2016). The

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issue of limited resources, in turn, rekindled an old debate between humanitarian duty and ‘communitarian’ claims (Panebianco 2014). The second issue receiving increasing attention is that which relates migration to security. The terrorist events in many European cities have regenerated old arguments supporting the intractability of certain types of migrants, Muslims in particular. In the past, not only journalist Oriana Fallaci in her renowned book ‘La Rabbia e l’Orgoglio’ (‘Rage and Pride’) (2001) but also political scientist Giovanni Sartori provoked criticism for their pronouncement with respect to immigrants with a theocratic culture (see Sartori 2000). Today the debate has been revitalized and adds to and nests with debates more generally questioning identity issues and integration capabilities. In addition, migration has become (intricately) entwined with one of Italy’s most deeply rooted problems, that of mafia organizations. From the illegal work of migrants in the agricultural sector in dire and undignified conditions (‘caporalato’), to the running of reception centres, counterfeiting or falsification of documents, to human trafficking (mainly prostitution), migration is a highly remunerative affair for criminal organizations active in Italy. This factor reinforces the perception of the country’s inability to properly cope with the challenge. The different processes of securitization and criminalization of migration have seen their effects diluted somehow or partly mitigated by the role of some actors. The unions have mostly upheld this role in the past, but it is particularly the role of the religious community that should be mentioned as having exerted effective influence on the governance of migration, both rhetorically and practically.4 Overall, this role has been aimed at rejecting some of the most ingrained and powerful stereotypes. Finally, but in no way exhaustively, while the Italian approach to migration has been profoundly affected by the peculiarities of the country, the development of its migration policy inevitably has to be understood in the framework of the EU’s governance of the phenomenon. Italy has come to play a major role in this governance as the main gateway for migrants and asylum seekers: as the frontline ‘protector’ of the EU’s borders but also as a ‘saviour’ of many lives at sea (the assertiveness of Italian naval operations—from operation ‘Mare Sicuro’, Constant Vigilance, to ‘Mare 4 Of note is the cooperation between the Catholic and Protestant communities in establishing so-called corridoi umanitari (humanitarian corridors) aimed at offering vulnerable persons legal entry to Italy with a humanitarian permit and allowing them to then apply for asylum, see http://www.santegidio.org/pageID/11676/Corridoi-umanitari.html.

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Nostrum’—is duly recognized), and as a country frequently responsible for examining asylum requests under the Dublin Regulation, among other issues. Willingness to be part of the Schengen club has clearly had an impact on Italian legislation on the matter. In turn, Italy has repeatedly brought two main challenges to the European table. The first is ‘solidarity’, poorly demonstrated during periods of massive arrivals.5 The second theme regards the general approach to the phenomenon. Because of its geographical location, Italy has been forced on more than one occasion ‘to add’ an external dimension to its migration policy, a necessity the EU seems now ready to recognize. The next section digs deeper into the real and perceived figures related to the phenomenon, so as to evaluate the space occupied by securitization moves in the public debate. Perceived and Real Migration Figures As seen before, public opinion seems to have been largely affected by the political and media discourse. One of the features that has characterized public opinion is the tendency to overestimate the number of migrants in the country. At the end of 2016, just over 5 million migrants were present in Italy (around 10% of the population), more or less the same number of Italians abroad (IDOS 2017a). Of these, only a third was of Islamic religion (IDOS 2017a), even though, as reported in research conducted by sociologist Massimo Introvigne, public opinion often believes that these migrants make up the majority of the total foreign-born population, which is instead actually Christian (La Stampa 2017). Over the last ten years, arrivals in Italy have ebbed and flowed. The very few arrivals in 2010 (4500) were amply compensated by inflows produced by the Arab Springs in 2011, which saw the numbers reach almost 65,000.6 From 2014 to 2017, inflows did not go below 150,000 per year. By 31 October 2018, the number of arrivals in Italy was around 23,000 (over 87% fewer than the same period of the year before), while 2019 has seen the arrival of around 11,500 migrants.7 It is interesting to note the drastic decrease

5 For an overview of Italian policy on irregular immigration, see Abbondanza (2017). 6 See http://frontex.europa.eu/trends-and-routes/central-mediterranean-route/. 7 http://www.libertaciviliimmigrazione.dlci.interno.gov.it/sites/default/files/allegati/ cruscotto_statistico_giornaliero_31-12-2019.pdf.

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in the number of inflows since July 2017 when Italy intensified its cooperation with Libya. Particularly relevant, although on the decline in 2018 (3300) is the number of non-accompanied minors, fluctuating between 13,000 and 14,500 yearly since 2014 but with a spike in 2016, when around 26,000 minors reached Italy (Dipartimento per le libertà civili e l’immigrazione 2017), a significant number of which remain untraceable (IDOS 2017a). Also, the number of requests for asylum in Italy has been on the rise. In 2015, residence permits for asylum and humanitarian protection were around 28% of total permits, far outpacing permits released for the same reason in 2007, blocked at 3.7% (IDOS 2017b).8 Asylum requests in Italy increased from 23,000 in 2013 to 123,000 in 2016 (ANCI et al. 2017), and continue to be quite sustained, elevating Italy to one of the top three countries in Europe for asylum requests. The demographic outlook cannot be disregarded in considering these migration figures; in fact, the two issues are often related. A realistic scenario for the future forecasts that the population of elderly people will account for more than 30% of the Italian population and that foreigners born overseas or persons with foreign origins will constitute a significant portion of the whole (one-third by 2065) (IDOS 2017a). This is a factor that will clearly test Italy’s integration capacity. Specifically because of this demographic outlook, Tito Boeri, President of the National Institute of Social Welfare (INPS) from 2016 to February 2019, stated that closing the doors to immigrants would cost the country 38 billion euros over the next 22 years (Amato 2017). Perceptions of the phenomenon are also of utmost importance: according to a poll, while the country is more or less divided on whether migrants represent a threat to public order and security (46% agree with this statement), the poll was positively answered by well over 50% of the centre-right electorate, with the electorate of the Northern League party shooting up to 75% (Demos and Pi 2017). Of no less interest is the Five Star Movement, 53% of whose electorate stated that it agreed with the statement (Demos and Pi 2017). Compared to previous years, the number of people believing that the control of migration inflows has top priority together with the protection of national borders has doubled

8 Of interest, permits granted for work reasons sharply decreased in the same time frame, passing from 56.1 to 9.1% (IDOS 2017b).

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(from 30 to 60%) (IAI-LAPS 2017). Remarkably, the centre-left electorate is also becoming significantly more sceptical about immigration (Diamanti 2017).

Italy’s Governance of Migration Between ‘Emergency’ and ‘Pressapochismo’: An Inadequate Response Having zoomed in on the reality of figures, this section focuses on Italy’s approach to migration and asylum. This overview aims to highlight the contours of the justice dimension in regard to the question of migration. a. The effect of the ‘emergency’ approach on the handling of migration In spite of its geographical position, Italy has only recently adapted to its new status and started to elaborate a legislative framework for the governance of migration. Furthermore, this belated response, triggered by the process of Europeanization as well as repeated massive arrivals on its shores since the end of the Cold War, has meant that the country has never really had an all-encompassing legislative apparatus, nor the tools and resources to live up to its role as an immigration country and a first gateway into the European Union. This state of affairs has been powerfully defined as a case of ‘pressapochismo’ (not addressing the issue with due concern) (Einaudi 2007) and has proved to be a consequence of the perpetual instability that characterizes the Italian political landscape, where new proposals have frequently been left unattended by subsequent political turnaround. This has favoured the repeated recourse to an emergency approach to the governance of migration, that is, to ‘exceptional measures’ which are in no way able to properly cope with the phenomenon and which in turn add fuel to the argument of the ‘state of emergency’ the country is living in. Also, this has had negative consequences for the situation and conditions of migrants in the country, causing securitization and criminalization dynamics to intensify when this overall inadequacy has been speciously used by anti-immigration movements. Resistance to overcoming this emergency approach is quite entrenched. Until the 1990s, migration was still quite an undebated issue in the public debate. When it did come to the fore the discussion focused mainly on the vulnerability of irregular immigrants, attracted by and

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employed in the country’s gigantic informal economy, a situation underlined first and foremost by the unions and the religious community. In the absence of any coherent or exhaustive policy address, ‘sanatorie’ (regularization procedures) were extemporaneous and reactive measures which answered the increasing need for a foreign workforce. This paradoxical situation has never found a proper solution, even when the first flows decree (quotas for the legal entry of migrants) was launched (always at lower levels than real exigencies). This ‘economic and social’ interpretation of the phenomenon, however, was gradually replaced by its ‘politicization’ throughout the 1990s. Securitarian traits emerged, fuelled in particular by movements placing public order priorities at the fore (Einuadi 2007, 140). This turn gained further currency after the 2001 terrorist attacks in New York and Washington, DC. Italy’s participation in the embryonic EU policy on migration and asylum somehow strengthened this security-focused approach to the matter, consolidating the idea of migration as a phenomenon to be strictly controlled. Indeed, Italy came to play a key role as a ‘frontier’ state. Border control came under intense scrutiny. As reported, ‘there was the necessity to convince European partners that Italy was able to control its frontiers, and was not allowing high inflows that could then pass (irregularly) into other countries of the Schengen area’ (Einaudi 2007, 171). In such a context, certain ‘restrictive’ measures started to have more relevance with respect to other possible provisions, from caps on regular migration, to more effective expulsions. Commentators noticed a ‘punitive’ rather than ‘regulative’ approach to the governance of migration (Casadonte and Di Bari 2002). The ‘Turco-Napolitano’ Law Decree n° 286 of 25 July 1998 (then Testo Unico), delivered by the then centre-left government, is thus by far the single most important document regulating migration and the conditions of aliens in Italy. Subsequent legislative provisions have made only partial corrections to it. Among these, the most important was Law Decree n° 189 of 2002, commonly referred to as the ‘Bossi-Fini’ Law, delivered by a centre-right government in which the Northern League had begun to exert significant influence. The Turco-Napolitano document was hence the first attempt to wholly regulate migration and migration-related aspects, including inflows and integration, but also the efficacy of expulsion measures. According to the text, regular entry into Italian territory is regulated by a ‘flow decree’ (decreto flussi), that is, quotas of aliens to be admitted for the purposes of employment, self-employment and seasonal work,

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also taking into account family reunification and measures of temporary protection (Law Decree n° 286, Art. 3). Over time stricter conditions have been imposed on the granting of permits for work purposes (De Ponte and Zanotti 2017): quotas have been destined to countries on the basis of their cooperation in the campaign against clandestine immigration or on the readmission of their citizens (Law Decree n° 286, 21), the first countries being Albania, Morocco and Tunisia. In this way, the alleged campaign against irregular immigration took precedence even over utilitarian reasons for accepting a substantial number of migrants. This opened to ex post regularizations, decided invariably by governments of all political colours, even when that meant bluntly contradicting the aim to combat irregular immigration (Geddes and Scholten 183). Overall, reduced opportunities for legal migration of third citizens have also meant lower leverage on readmission of irregular immigrants towards third countries (Pastore 2016). Over time, measures have been introduced which seem to have even further complicated the possibility of regular permanence, while also ‘weakening’ the position of migrants in the country. This has been particularly so in the case of centre-right coalitions (2001–2006; 2008–2011). The ‘residence contract’, introduced by the Bossi-Fini law as a precondition for issuing residence permits for dependent workers, subjugated migrants to their employers (who thus had to provide guarantees for their workers), ruling out reciprocity as the term would instead suggest, hence impairing their condition (Zorzella 2011). Family reunification as the right to keep or re-achieve family unity is also one of those measures which have been progressively restricted as compared to the initial provisions of the ‘Turco-Napolitano’ law in 1998. This has led to fewer opportunities for migrants to exert their rights and, de facto, to the closure of possible regular access to Italian territory (Zorzella 2002; Pastore 2008). The process of integration, as the process aimed at promoting the coexistence of Italian and alien citizens, in accordance with the values enshrined in the Italian Constitution (Law Decree n° 286, Art4bis), has according to some experts been prey to the lack of proper reciprocity, a factor which forms the basis of effective integration into a society (Zorzella 2011). In fact, the law envisages the signing of an integration agreement, whereby the issuance of a residence permit is subject to specific integration objectives (Law Decree n° 286, Art4bis). This is all the more controversial due to the fact that only migrants are subject to this agreement and not Italian citizens (Cuttitta 2016). According to

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some, the integration agreement, like the residence contract, constitutes ‘obligations unilaterally imposed, that the party upon which such obligations are imposed has no possibility to avoid, if not by leaving the national territory’ (Zorzella 2011, 63). That is, they are provisions which narrow the range of possible choices available to migrants. The Turco-Napolitano law (Law Decree n° 286, Art. 14) also established the infamous ‘Centri di permanenza temporanea’ (CPT—centres of temporary stay), renamed ‘Centri per l’identificazione e l’espulsione’ (CIE—centres for identification and expulsion) by the Bossi-Fini Decree. Indeed, the attempt was to make the identification and then the expulsion of irregular immigrants more effective, answering an EU concern in this sense: to act in compliance with other European states, where these centres were already present (Nascimbene 2001; Di Martino 2014), but also to respond to the need to cope with increasing irregular inflows. The centres have raised the delicate issue of ‘administrative detention’ which, according to some, sits oddly with the Italian Constitution (Veglio 2017, 132). The Constitutional Court has made it clear (with sentence n° 105 of 2001) that detention in the centres of identification and expulsion is a measure that restricts personal freedom and causes ‘human dignity humiliation’ (ASGI 2016). Furthermore, if the word used is ‘trattenimento’ (detainment), that in principle does not contravene international and Italian law, administrative detention is still reprehensible due to its symbolic meaning and how it is effectively practiced (Campesi 2014). Over time, administrative detention has become part and parcel of the governance of irregular immigration, to the point that the allowed stay in dedicated centres has been progressively extended from 30 days in 1998 to 60 in 2008, to 6 months in 2009 and to 18 months in 2011. The peripheral location of these centres (aimed at separation from the local community), their large dimensions and the poor living conditions therein have been some of the most criticized issues due to their impact on migrants. Moreover, currently these are places where rights are not guaranteed, with the risk that vulnerable people end up being prey to the phenomenon of radicalization (Licata and Perego 2017, 16). A clearly identifiable restrictive approach with regard to migrants’ rights was pursued by Law Decree 160/2008, implemented by a centreright coalition with a leading figure of the Northern League party as Minister for the Interior. Much more than before, between 2008 and 2011 the general approach to migration was framed with the objective of preserving ‘public security’ (Zorzella 2011). The clearest securitarian

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traits of this approach were mostly visible in 2009 (Law n° 94 of 2009) when the crime of illegal entrance and permanence in the territory of the Republic was established (Savio 2009). ‘Irregularity’ hence became a crime (Peprino 2009), and collective expulsions (prohibited by national, EU and international law), the so-called push-back operations, were openly implemented, expulsions for which Italy was heavily criticized and sanctioned (Boldrini 2010). b. Asylum in Italy: a mismatch between possible and effective international protection It was only in the late 1980s that Italy eliminated the ‘geographical reservation’ for asylum seekers, that is, recognition of protection only for European refugees. Throughout the second half of the twentieth century, the preservation of this clause had made Italy one of the first countries of temporary asylum for non-European asylum seekers, who then asked for permanent protection in other European countries (Petrovic 2016). However, the preservation of this clause became incompatible with Italy’s participation in the Schengen system and the Dublin Regulation, according to which Italy was called on to play a prominent role as a frontier state. The elimination of the ‘geographical reservation’ and the adoption of a visa requirement for countries with high emigration allowed Italy to finally enter the Schengen club in 1990 (Einaudi 2007, 161). In practical terms, this move required the elaboration of a fullyfledged asylum policy. However, Italy has fallen short of this objective, with the consequence that time and again new waves of arrivals have been addressed as ‘new emergencies’, requiring exceptional measures. ‘Emergency’ has become the new normal. Surprisingly, the Turco-Napolitano law did not adequately address asylum matters (Trucco 2002). This legislative void is all the more puzzling considering that the right of asylum is not only fully imbedded in the Italian Constitution (Art. 10, comma three in particular) but that it is also quite extensive: The foreigner to whom the effective exercise of the democratic freedoms granted by the Italian Constitution is denied in his country, has the right to seek asylum in the Republic, according to the conditions established by the law… Art. 10, Italian Constitution

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‘The juridical sensitivity shown by the Republic in recognizing and ensuring the right of asylum’, it is reported, ‘does not find equally full and relevant examples in other democratic states’ (Asprone 2012, 33). As specified by some scholars, the ‘democratic freedoms’ granted by the Italian Constitution are quite extensive and encompassing, to the point that the right of asylum applies to a wider category of persons in comparison with the ‘political refugee’ (Bonetti 2008). In spite of this, the article has never been translated into law so as to ensure full implementation and practicability of this extensive form of protection (Petrovic 2016, 143) or so-called constitutional asylum, while protection has been mainly issued on the basis of the United Nations Geneva Convention on the Status of Refugees (1951) and European Union law (Stege 2017, 27). Hence, the development of asylum legislation has been belated in Italy and mainly triggered by transposition of EU legislation. In addition to the EU’s categories of protection (refugee status and subsidiary protection), Italy has introduced ‘humanitarian protection’ in the case of special vulnerabilities (Law Decree n° 286, Art. 18). While this is indeed a positive addendum to protection, humanitarian protection does not grant rights similar to those of the other categories and allows for much shorter residence permits.9 Moreover, it has been further restricted by the Security Decree passed in December 2018 (Law 1st December n° 132). c. From first reception to integration possibilities Doubtless, the reception system is the Achilles heel of Italy’s asylum policy, a weakness that motivates frequent (mostly rhetorical, or politically motivated) reference to ‘emergencies’ (for the country) in times of massive arrivals and which then actually creates a true emergency with regard to the treatment of asylum seekers and refugees. The role Italy plays according to the Dublin Regulation further underlines the urgency of having a proper reception system. As stated by Schiavone (2017, 76), Italy is the country where the impact of flawed EU policies will be felt the most if the overall legal orientation (the Dublin Regulation) is not wholly and profoundly modified. Recently, debates have particularly focused on the hotspot approach, encapsulating a measure to ensure the proper

9 The residence permit (renewable) issued for refugee status and for subsidiary protection is for 5 years.

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fingerprinting of all migrants arriving by sea. In fact, there is no EU or national law regulating the structures established in Greece and Italy (Molfetta 2017, 61) and the Ministry of the Interior has adopted standard operating procedures that do not have a clear legal basis (Raffaelli 2017, 6). The lack of legal assistance, of appropriate structures, the attested violations of basic human rights and uncertainty over the destiny of many migrants classified as not being in need of international protection are issues of concern (Veglio 2017; Marchetti 2017). They are Italy’s responsibility but they also embody a ‘political’ responsibility of the European Union which has set forth the approach (Amnesty International 2016). Indeed, the lack of solidarity among Member States in times of massive arrivals would affect any country, irrespective of how well its reception facilities function. Aside from the impact of EU legislation on Italy and the lack of or ineffectual implementation of solidarity mechanisms (such as the relocation scheme decided on during the recent ‘migrant crisis’), it is largely the inability to cope with the issue that has constantly recreated emergencies, heightening social tension in the country and impairing recognition of asylum seekers’ and refugees’ legitimate rights. To a certain extent, the lack of specific guidelines on reception at the EU level has contributed further to this mismanagement. Reception is understood in the Italian system as a two-tier process: first and second reception phases (Law Decree 18 August 2015, n° 142, Art. 9; ANCI et al. 2017). A preliminary rescue and assistance phase (arrival, identification and notification of the intent to submit a request for asylum) is provided in centres which, as in the case of the hotspots above, lack a clear normative framework of guarantees. This situation has caused Italy to be accused of severe violations of the laws by the European Court of Human Rights (Schiavone 2017, 94; Veglio 2017, 125). Temporary emergency structures can only be used in the case of lack of accommodation. First reception is hence intended as provisional, to be complemented with full provision of reception and integration measures. The second tier of reception consists of the ‘Territorial Reception System’—the protection system for asylum seekers and refugees (SPRAR)—and has been dedicated both to applicants who, after having made an official request, can demonstrate their inability to provide for their own sustenance and that of their family, and for persons

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already recognized as refugees.10 SPRAR should be the ordinary system of reception, providing social and material assistance (Schiavone 2017, 97). However, the system runs on a voluntary basis, depending on municipalities’ willingness. Because they are voluntary, SPRAR facilities are not homogeneously distributed across the country, ultimately rendering ineffective the idea of a territorial reception and integration model. On paper, only in the case of immediate lack of accommodation in SPRAR facilities can an asylum applicant be held, and only temporarily, in first reception centres or in ‘extraordinary reception centres’ (CAS-Centri di Accoglienza Straordinari). However, the reality is that, given the massive arrivals of recent years, the bulk of asylum seekers are not detained in the SPRAR system (ANCI et al. 2017), but in the ‘extra-ordinary’ reception system which, according to Schiavone (2017, 100), ‘reproduces that state of permanent emergency that from the very beginning has represented the ponderous characteristic of the Italian reception system for asylum seekers’ and which, according to Marchetti (2017, 151), does not give asylum seekers the possibility to enjoy the rights to which they are entitled. In fact, social integration is not provided for in this system. The situation is further aggravated if one considers the length of the evaluation process, which generally takes around a year (ANCI et al. 2017, 25). But the situation is also far from appropriate for persons already entitled to international protection. In this respect, Italy lags behind many other European states, with a very feeble and by no means certain system for their integration and progressive autonomy in Italian society, worsened further by various local practices. This inevitably subjects migrants to marginality. In September 2017, the former Minister for the Interior released the first ‘National plan for the integration of persons entitled to international protection’, identifying priorities for social inclusion (Ministero dell’Interno 2017). However, the Security Decree of December 2018 drastically reduced attention to and plans for integration. Many informal encampments in and around cities (at least 35) are partly a product of the lack of effective integration opportunities and they expose asylum seekers and refugees living therein to many vulnerabilities, such as lack of healthcare services (Godio 2017, 196; ANCI et al. 2017).

10 The Security Decree released in November 2018 restricts the SPRAR system to refugees, de facto depriving asylum seekers of important integration measures.

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The lack of effective provisions for non-accompanied minors is yet another weakness of the Italian reception system. Here a disconnect has emerged between the rhetoric, that has always accompanied the protection of minors, and the practice, in which minors are mainly held in the centres for identification and expulsion and more recently in hotspots (Oxfam 2016). While the asylum and reception system in general reveals the loopholes still existing in the governance of migration, the long-standing hesitation to reform Italy’s very restrictive citizenship law based on ius sanguinis (citizenship derived from lineage and not from territoriality-ius soli) is just as relevant. It denotes a lack of adaptation to the new reality, where the number of foreign nationals or persons with foreign origin is on the rise in the country, as seen before (IDOS 2017b). In spite of this new reality, or probably because of it, public support for ius soli has decreased: while in the 1980s it was at 80%, in September 2017 it had dropped to 52% (Demos and Pi 2017). On the other hand, the increasing presence of foreigners has underpinned the necessity of a foreign dimension of migration and asylum governance, an understanding that has matured over the years and that is presented in the next section. When Migration Intersects with Foreign Policy The first massive arrivals in Italy, clearly marking the inevitability of an external dimension to the governance of migration, came about during the ‘Albanian crisis’ of 1990 when deep economic and political turmoil, exacerbated by the end of the Cold War, led to the outflow of around 30,000 Albanians to Italy. After the first episodes of solidarity (Marchetti 2017, 146), the Italian approach grew increasingly restrictive and irregular immigrants were mostly repatriated. The ‘Albanian crisis’ gave rise in 1991 to ‘Operation Pelican’, aimed at providing humanitarian aid to the Albanian population (so as to discourage departures). Italian cooperation with the country resumed in 1997, with the signing of an agreement envisaging, among other aspects, the joint patrolling of Albanian and international waters. Moreover, Italy promoted and was subsequently at the head of a multinational humanitarian mission, ‘Operation Alba’, to cope with the renewed Albanian crisis that erupted in those years. The objective was to provide humanitarian assistance but also, with a military presence, to help stabilize the country which was again falling into severe

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economic and political disarray. This was the occasion for Italy to establish strengthened relations with Albania, especially in terms of assistance and training. Taking full consideration of its geographical position and triggered further by the Balkan crises, the planning document of the TurcoNapolitano law clearly underlined the necessity to engage with transit and origin countries to better govern migration (Einaudi 2007, 214). After Albania, Tunisia also started to cooperate with Italy, and by 2001, 22 readmission agreements with other countries were signed, plus other cooperation agreements on migration-related aspects (Einaudi 2007, 269). Currently Italy has more than 250 agreements with third countries aimed at improving police cooperation (ASGI 2016).11 A peculiarity of some of these agreements is their ‘informality’: deals, pacts, ‘technical agreements’, memoranda and letters of intent (often not for public consultation) are the formula used to frame relations based on Italy’s technical and material assistance in controlling outflows, streamlining repatriation procedures and providing preferential quotas or other rewards at the national or EU level.12 An emblematic example of relations with third states is the one with Libya, which is not limited to the recently signed agreement with the country (see below) but which dates back to the period when Colonel Gaddafi was in power (Ceccorulli 2014; Paoletti 2010). The need to cooperate on migration and related matters has produced many deals and agreements since 1998, the contents of which have remained undisclosed in most cases. Both centre-left and centre-right governments have considered cooperation with Libya as inevitable. Two deals have been particularly relevant: one, signed by the centre-left government in 2007 was a protocol of cooperation on illegal immigration and its exploitation, employing joint maritime patrolling operations in Libyan territorial waters against irregular departures. To implement this plan, Italy agreed to loan Libya six naval units of the Guardia Di Finanza

11 For an overview of Italy’s readmission agreements, see Borraccetti (2016). 12 Of particular note are the recent memoranda with some ‘disputable’ governments

such as Gambia and Sudan; in the case of Sudan, the memorandum constituted the basis for the rapid and ‘collective’ repatriation during the summer of 2016 of some Sudanese blocked in Ventimiglia (at the frontier with France), some of whom came from the ravaged region of Darfur. Italy was accused of both collective expulsion and violation of the non-refoulement principle (ASGI 2016; ANCI et al. 2017, 55).

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(an Italian law enforcement agency under the authority of the Minister of Economy and Finance) and to train Libyan personnel to work in autonomy (Governo Italiano 2007). The deal, however, was put on hold until a new centre-right government came into power and in 2008 the ‘Treaty of Friendship, Partnership and Cooperation’ was signed. This treaty not only implemented the previous cooperation terms but also created a broader framework for cooperation between the two countries. In this period, arrivals to Italy by sea dropped significantly. Recently, the overall governance of the phenomenon has been challenged by concomitant factors: reception already at full capacity, instability in Libya and the absence of a reliable interlocutor (De Giovannangeli 2017). In this respect, Italy’s effort goes hand in hand with the process of stabilizing the country. Further complicating factors are inaction and silence from the rest of Europe (Venturini 2017; Calabresi 2017), with Italy confined to the onerous and uncomfortable role of ‘buffer state’ (Pastore 2016) and most importantly a lack of solidarity among Member States in terms of allowing disembarkations (Zatterin 2017; IOM 2017). Repeated threats by Austria to close the Brenner Pass border crossing and tensions with France at the Ventimiglia border have added to the urgency of relying on the North African country to decrease arrivals (Minniti 2017). On 2 February 2017, the Italian government and the Libyan Government of National Accord signed a memorandum on ‘cooperation in the field of development, fight against illegal immigration, human trafficking and the strengthening of borders’ to reduce inflows to Italy, explicitly referring to the 2008 Treaty of Friendship (Repubblica 2017a). As in the past, contestation concerned the conditions of migrants returned to Libya or prevented from departing (Repubblica 2017b), training the Libyan Coast Guard and institutions aimed at preventing outflows, providing coastguard speedboats (Amnesty International 2017), deploying Italian ships in Libyan territorial waters (ECRE 2017) and relying on a country which has not signed basic conventions on human rights (not even the 1951 Geneva Convention on Refugees), and which is now much more politically vulnerable than in the past. Another issue of equal concern is the drafting of a code of conduct for NGOs engaged in search and rescue operations in the Mediterranean (Bresolin 2017). The situation of NGOs, according to one Italian journalist, has produced what can be defined as a ‘moral reversal’ (Mauro 2017), whereby even rescuing humans at sea is no longer perceived as an undisputable duty.

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In this respect, Italy’s experience within the EU Migration System of Governance is not unique: as stated by Sciortino (2017, 133–134), EU Mediterranean states are often abandoned, with the end result that regardless of what they do (agreements with controversial states, no rescue of migrants, rescue and return of migrants, rescue and transfer of migrants in national ports), they cannot ‘win’ because they inevitably fall prey to many accusations, including not respecting human rights, the asylum law or, on the contrary, of favouring irregular immigration, such as in the case of Italy with Operation Mare Nostrum.

Schizophrenic (In)Justice? The above outline of Italy’s legislation and approach to migration and asylum reveals the different interpretations of justice emerging from the governance of the phenomenon. But providing a definitive assessment of the conception of political justice (or injustice) is not an easy task. This is especially so because there are different conceptions that are simultaneously embraced in the country, albeit with inherent conflicting priorities. In the case of migration, possible conflicts between coexisting objectives of justice are particularly tricky insofar as migrants’ mobility is likely to clash with states’ sovereign right to decide who is entitled to cross national borders, something that approaches an understanding of justice as nondomination. However, the issue implicates human beings who are entitled to basic human rights (at least according to liberal democracies), and even more so persons often vulnerable or in need of protection. As seen above, the moral dilemmas and ethical implications of the choices made by frontier states are particularly complex, specifically because of their role as ‘dividing’ lines between safe and unsafe regions, between the certainty of rights and their absence, and indeed between ‘haves’ and ‘have nots’. Italy has started to regulate migration only recently but with a clear attempt to control and select arrivals. This belated move has indeed strengthened the country’s sovereign prerogatives. While this aim has been pursued invariably by all political formations, the attention given to migrants’ rights has substantially differed. Overall, centre-left governments have also focused on integration and have mostly eschewed criminalization and securitization moves. However, both the centre-right and centre-left have embraced the ‘emergency’ trait of the governance of migration. This makes one wonder whether, as Caputo argued almost twenty years ago, we are still promoting an exceptional law for foreigners

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(Caputo 2000, 52): the exceptional situation triggered by the constant ‘state of emergency’ has inevitably weakened solid protection of human rights on many fronts. This has been demonstrated particularly by the increasing reliance on third states with more than dubious human rights records (the agreement with Libya being only one example). The casual nature of many of these agreements (lack of transparency, of parliamentary inspection, of timely information and public access) raises further doubts about the pursuit and protection of human rights. Also, clear evidence of this negligence has been epitomized by the way reception for both irregular immigrants and asylum seekers has been offered: in times of emergency it has resulted in conspicuous violations of human rights, including those recognized by the European Court of Human Rights. The lack of an effective and efficient reception policy also risks obscuring the assessment of an operation such as Mare Nostrum: while the ‘humanitarian’ and warm-hearted inspiration behind the operation is widely recognized and applauded, the ethical judgement of the destiny of over 150,000 rescued migrants is inevitably a trickier question. Of greater ethical concern, however, is the delayed adoption of provisions and the persistent lack of regulations concerning some migration-related aspects. As has been noted, the adoption of an asylum policy in Italy has been very tardy, in spite of the fact that the country has been an effective destination for asylum seekers since the 1990s. The adoption of a national plan for the integration of persons in need of international protection is very recent (2017)—and according to some, still insufficient. To this we must add the lack of effective legislation for non-accompanied minors and an up-to-date reform of citizenship. Ultimately this could demonstrate the clear violation of all three conceptions of justice taken into account. In fact, while impartiality and mutual recognition are clearly impaired, with individual rights being bluntly violated and vulnerabilities being neglected, it seems that the absence of legislation allows for practices of arbitrary interference, that is, of possible domination leading to social marginality. The instability characterizing the Italian political system, whereby long-standing dossiers never see the light of day, cannot excuse the Italian government from this negative assessment. And yet in Italy there is a clear understanding of justice in terms of impartiality and mutual recognition. Inherited from the suffering endured during the Second World War and from its experience as a country of emigration, Italy has one of the most extensive understandings of international protection in Europe (Art. 10 of the Constitution) including a

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humanitarian form of protection (although now being challenged) that recognizes specific vulnerabilities. This has been demonstrated through solitary and costly actions, such as the search and rescue operation Mare Nostrum. It has also been extensively and constantly buttressed by institutions traditionally supportive of vulnerable persons, such as the unions and the religious community. The major risks for the country, hence, seem to be firstly an increasing divide between rhetoric and norms on the one hand and practices on the other (Petrovic 2016, 159). Secondly, given the sensitivity of the issue, an increasingly worried and misinformed public opinion legitimizes some of the most contested practices of the past (such as the push-backs of 2009) and the continuous postponement of urgent measures such as integration or the issuing of citizenship, challenges which seem to be strengthened by the extremely restrictive approach and narrative of some political formations.

Conclusion October the 3rd has been proclaimed in Italy ‘the national day in memory of the victims of immigration’. What may seem to be a national concern instead portrays Italy’s role in the European Migration System of Governance, a system in which Italy has started to play a major role and which has greatly affected the country. A country of emigration in the past, at the end of the last century Italy turned into a country of immigration, a major receiver of asylum seekers, a first-entry gateway into the European Union and a relevant element of the Schengen system as a whole. This progressive shift has been strongly affected by some of the country’s peculiarities, by the incapability to properly step up to the demands of its role and by the divisiveness of the issue itself. The result has been a radicalization of political positions and the restriction of space for a fully-fledged and coherent debate on migration, making it all the more difficult to unify security and humanitarian objectives. Also, and as a consequence, this has led to the above-described ‘ pressapochismo’ (superficial approach) (Einaudi 2007, 155) and ultimately to the tyranny of the emergency (incapacity to govern in an ordinary and planned way) which is today one of the greatest problems affecting Italy, for it paves the way for criminalization and the transformation of the situation into a security matter.

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While the obvious victims of this state of affairs are the migrants themselves, the country is drawing no benefits: public opinion is becoming increasingly hostile to policies which are not only in line with Italy’s norms and values (non-refoulement, proper and dignified reception, insistence on the right to asylum) but which would also contribute to the country’s future economic and demographic challenges (integration and citizenship). Ultimately, the underdevelopment of the reception and integration realms means that migration and migrants’ potentialities are still not given due consideration, while the issue is still ensnared within the question of control.

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CHAPTER 6

France and Migration Between Logistification and Ethical Minimalism Giorgio Grappi

Introduction As a Member State (MS) of the European Union, France’s prerogative in managing its national borders has been inscribed in a European system of governance that both Member States and the EU have contributed to developing (Fassi and Lucarelli 2017, 4–5). In the field of migration policy, this reconfiguration has meant the creation of European directives and regulations and a partial ‘top-down’ constraint on Member States’ autonomy. However, Member States have also influenced the formation of a peculiar European framework. In both cases, Member States are different entities that enjoy formal equal membership but carry unequal leverage and power. As a populous and powerful founding Member State, France can be considered a key case study in a policy area where, as observed by Laura Block and Saskia Bonjour, “what is perceived among politicians as ‘the European norm’ consists not only of

G. Grappi (B) Department of Political and Social Sciences, University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_6

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formal EU laws, but also and even primarily of what is common practice among EU Member States” (Block and Bonjour 2013, 217). France indeed has a strong tendency to describe its migration policies referring to the European dimension while, at the same time, advancing national priorities. The aim of this chapter is to analyse how France’s migration policies have changed over time in line with the unstable political meaning of both immigration and asylum, by using the European dimension as a legitimizing tool or, on the contrary, as a critical reference to shift political responsibility elsewhere. The use of the different conceptions of justice as illustrated in the introduction of this book (Lucarelli 2021), namely, justice as non-domination, justice as impartiality and justice as mutual recognition, helps to capture the ongoing shift towards a limited and narrow conception of justice by state actors and its consequences with regard to protection of migrants’ rights, interstate relations and the European dimension. By discussing the concept of logistification, a relatively new concept in the study of migration, the analysis undertaken in this chapter suggests the emergence of a minimalist understanding of what is ‘just’ in the field of migration policies, which is based on an operational logistical rationale and results in growing discretionary power in migrants’ access to rights and protection (Altenried et al. 2018). The chapter is organized into three sections: the first section introduces France’s path to contemporary migration and asylum policies. The second section discusses recent developments and reforms around the so-called migrant crisis. The third section introduces the concept of logistification as a way to capture the emerging logic behind French migration policies. The fourth section discusses the implications in terms of justice of the previous analysis and the emergence of justice minimalism. A brief conclusion summarizes the argument and findings of the chapter.

French Trajectories Formal recognition of the presence of foreigners in France dates back to the 1851 census. However, Gérard Noiriel explains that it was not until the Third Republic (1870–1914) that the concept of ‘immigrant’ began to circulate as part of the effort to govern a mobile working population (Noiriel 1988). In the early twentieth century, after a period of unregulated immigration, the French state joined employers in an effort to recruit foreign workers to cover labour vacancies. As part of

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this effort France experimented with what is considered to be the first bilateral agreement for the recruitment of workers, signed with Italy in 1904 (Douki 2017). In the following decades, the foreign workforce becomes an integral part of the French economy, valued or ostracized mainly depending on economic trends. Reconstruction after the Second World War and the subsequent period of economic growth also led in France to what is described as “the golden age” of labour migration and a flurry of bilateral agreements to attract fresh workers (Wickramasekara 2015, 17). These bilateral agreements in some cases implied forms of mass recruitment but were limited in scope to what was considered temporary labour migration. The consequences of decolonization and the oil shock of 1973 produced a major turn, leading to a de facto suspension of regulated labour and family migration (Geddes and Scholten 2016, 52). The same period saw a gradual increase in the proportion of immigrants from nonEuropean countries, with a rapid net inversion from the 1960s, and the adoption of new regulative frameworks that would eventually become the blueprint for future immigration laws. The end of the French colonial empire, and most remarkably the independence of Algeria (1962), forced France to cope with the presence of millions of foreigners from former colonies and high mobility across countries. Different attempts to regulate the matter went from the recognition of social rights for Algerians in France, to specific bilateral agreements targeting Algerian workers, now migrants, and the introduction of different categories of residency permits differentiating between workers, students and trainees, including the regulation of family reunification (Raimondi 2016, 28–42). In particular, after the so-called Marcellin-Fontanet circulars of 1972, respectively, from the Ministry of the Interior and Ministry of Labour, the release of a permit to stay was strictly related to the previous obtainment of a labour contract and lodging. This limited access for new immigrants but most significantly relegated thousands of migrants already present but irregularly employed in France to the shadows. At the same time, France was involved in drafting return agreements with countries of origin, particularly former African colonies (Wihtol de Wenden 2014, 66). These return agreements, which formed an integral part of French foreign policy in Africa, began to include training for workers before return as well as development aid, eventually becoming a precedent for contemporary bilateral agreements. Visa policies initiated

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at that time formed a relevant feature of what is known as Françafrique, a portmanteau that describes the particular regime of relations, criticized for its patronizing aspects and the dynamics of corruption it generated, formulated by France with the elites of former colonies and other francophone African countries (Verschave 1998; Bovcon 2011, 20–21). While immigration becomes an increasingly prominent issue, the formation of specific regimes of mobility with former colonies and the absence of a comprehensive law led to the emission of dozens of decrees and circulars (Geddes and Scholten 2016, 55). The result has been a normative cacophony that has increased the insecurity of the immigrant population and the contentiousness of the topic. These various elements contributed to the emergence of a political discourse based on the need to control (maitriser) the flux of migrants and to the assumption that France “cannot accept all” (Viprey 2010). In parallel, the social presence of migrants produced movements of support for their right to stay and made popular the term sans-papier (without documents), underlying their presence and the lack of recognition by the state (Cornuau and Dunezat 2008, 346–349). It is within this context that the socialist government in 1984 introduced a renewable residency card (carte de sejour) of 10 years, which granted migrants a set of rights not fully dependent on their working position (Lochak 2014). The shifting economic situation in the early nineties led to a more tailored definition of the interests of the nation, where labour migration was linked to the restriction of migrants’ access to the French social system. With the adoption of the Maastricht treaty in 1992 and the implementation of the Schengen convention, France was finally included in an intergovernmental system, although migration remained a national domain (Wihtol de Wenden 2014, 69). The first laws adopted in France as part of the new European regime were the Pasqua laws of 1994, under the Gaullist government, which introduced restrictions on family reunification, limited migrants’ access to welfare benefits and made the concession of citizenship to children born in France dependent on their ‘manifest of wish’, thus suggesting their foreignness to French society (Geddes and Scholten 2016, 56). The Pasqua laws were almost completely reversed by subsequent measures, but the tendency towards stricter regulations remained. Nevertheless, the sans-papier made evident the fact that their precarious status was created as the result of previous policies. This led in the late 1990s to recourse to several waves of regularization, mainly by

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socialist governments. In this period, a different type of bilateral agreement with third countries, entailing lower numbers but including broader conditions and implications for the countries involved, was about to emerge (Panizzon 2012). In addition to defining the conditions of regular stay, migration policies are formed by a larger set of ancillary policies. Nicholls described in this regard a shift, in the second half of the twentieth century, from an ‘exclusionary regime’ when the politics of bilateral agreements was paired with an effort to silence the presence of migrants, to an integrationist phase as a response to migrant’s increased participation in labour and social struggles (Nicholls 2012, 516–521). This different approach used social policy to indirectly regulate migrants’ role in society, with access to housing becoming a tool of selection and surveillance. Starting in the eighties, affirmative action focused on redeveloping poor neighbourhoods and institutionalizing solidarity associations as a way to channel and control migrants’ activism (Ibid., 522–526). By defining specific zones of intervention in areas densely populated by people with immigrant backgrounds, the French state attempted to contain the immigrant question inside the Republican discourse. It did this partly by mobilizing the concept of ‘cohesion’, a keyword in the development of an EU territorial policy, and by renaming the ‘social action fund’ (FAS) ‘agency for social cohesion and equal opportunities’ (ACSE) in 2005. However, Republican secularism (laicité) turned out to be unable to deal with the heterogeneous composition of French society and ironically contributed to the social segmentation that periodically exposes French banlieue to tensions (Ibid., 527; Geddes and Scholten 2016, 50). From 2002 to 2012, the debate around migration was catalysed by Nicolas Sarkozy, minister of the interior in 2002–2007 and then President of the Republic. Sarkozy’s discourse on “chosen immigration” (immigration choisie) openly affirmed the right to decide who to admit and the goal of favouring qualified economic migration over familial migration, which represented the vast majority of new permits (Viprey 2010). The Code for Entry and Residence of Foreigners and Right of Asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile) or CESEDA, the law that collects the previously dispersed norms dealing with migration was first adopted in this period. The competencies and talents residency permit (carte de séjour compétences et talents ), epitomizing the idea of ‘chosen immigration’ and predecessor of today’s talent passport (passeport talent ), was introduced in 2006.

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French asylum policies developed in parallel and against the background of this emerging selective regime. While in the past asylum was somehow a marginal issue in comparison with labour migration, the figure of the refugee has gradually emerged as a crucial component of migration policy. This in spite of the presumption of an objective distinction between immigrants and refugees, which is often assumed without paying attention to the flexibility of these categories and the fact that they are historically and politically fabricated (Akoka 2016). France represents a peculiar case study in this regard. A ‘French office for the protection of refugees and stateless people’ (OFPRA) was created in 1952 under the tutelage of the Foreign Ministry and in cooperation with the UNHCR to apply the obligations of the Geneva convention, but the implementation of the right of asylum has always been the result of political circumstances and unofficial policies (Akoka 2013). The study of OFPRA reveals how the entanglement between changing political scenarios, normative shifts and administrative practices led to a “juridical and positivist conception of the refugee, substantiating the idea of a procedure that would be neutral and objective” (Akoka and Spire 2013, 69–75). Throughout this process, the meaning of asylum changed many times. At first, the line between migrants and refugees was not entirely drawn, and a generally positive attitude towards people fleeing dictatorships resulted in a recognition ratio of 85% in the early 1980s. The situation rapidly changed following the increase in applications in the late 1980s and the change in their composition, with the recognition ratio dropping to 15% (ibid.). At the same time, OFPRA was reorganized, leading to the transformation of its employees into impersonal figures in a drawn-out bureaucratic procedure and the gradual involvement of the asylum service in the policies of migration control which formed between the end of the 1990s and the early 2000s (Ibid., 75–76). As a consequence, the very status of refugee has lost its original character of political solidarity and protection and asylum has become a “scarce” good with high value, difficult to obtain (Fassin 2013, 19). This has restricted the category of refugee and shifted the normative and political attention to the figure of the asylum seeker, a gateway category to access the regime of protection. It has also led to the progressive enmeshing of asylum policies in a wider policy of governing of mobility. As we will see, these transformations have a strong impact on contemporary policies and on the understanding of justice they entail.

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Sorted by Utility This section analyses the French immigration and asylum system by exploring the recent dynamics of reform of both sets of laws. France has reformed the asylum and immigration system with adjustments of the CESEDA several times in the past years. But rather than departing from the abovementioned trajectories, these reforms took on a new twist in their implications. The Fekl report of 2013, from the name of the rapporteur to the Prime Minister on the functioning of immigration laws in France, identified the main challenges for the French system in the struggle against irregular migration, better integration for those who have the right to stay and the simplification of procedures (Fekl 2013). The declared goal was to clarify the distinction between regular and irregular migrants, providing the former with increased administrative security through multiannual permits and becoming more effective against the latter. The reforms of the CESEDA fell short of responding to these priorities, as the conditions for the release of the multiannual permit and the number of attestations that can be requested before and after obtaining it resulted in further precariousness of regular stay (ADDE et al. 2017, 49). The law prioritizes the acquisition of French language skills and replaces the Reception and Integration contract (Contract d’accueil et intégration, CAI), introduced in 2006, with the Republican Integration Contract (Contract d’intégration republicaine, CIR), a personalized 5-year path to integration with compulsory duties. As a consequence, the traditional meaning of integration as something that concerns the capacity of public policies and national culture to include new members, is inverted into being migrants’ duty to integrate; they must demonstrate their capacity to adapt and accept their position within society. This has much to do with the obstacles that migrants face with regard to their bureaucratic duties. From the incompleteness of certifications related to the CIR to problems with labour contracts and housing, or a simple communication problem regarding residence, the law builds on the ‘chosen immigration’ discourse by increasing the tasks for migrants to maintain their documents in order (Ambrosini 2016, 97). These conditions are made even harsher if we consider the strong distinction between migrants with a permanent job and those with temporary jobs: while the former can enjoy relative stability as wage workers (salarié), the latters’ permit as temporary worker (travailleur temporaire) is strictly tied to their labour contract,

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thus further extending social precarity to status precariousness and vice versa. The link between status and labour condition better illustrates the main axes of France’s governance of migration according to the CESEDA and public practice, namely: (a) the selection of foreigners according to the needs of the labour market, by means of bilateral agreements with countries of origin, and the definition of a list of professions for which the labour office recognizes a labour shortage and the direct selection of professionals or entrepreneurs with the talent passport; (b) the proliferation of statuses, depending on a wide range of conditions and waivers for the issue and renewal of documents; and (c) the strengthening of controls on entry into the country and the continuous monitoring of documents during the stay. The reinforcement of removal powers, including doubling fines for airlines or other carriers bringing foreigners to France without a regular visa, constitutes a corollary of the overall system. The result, epitomized by the institutionalization of the talent passport, is that of “recognizing different rights according to people’s economic ‘utility’” (ADDE et al. 2017, 37). It is against this background that we can grasp the logic behind the reform of the asylum system, and its inclusion in the wider governance of mobility. Since the early 2000s, when the goal of a common asylum policy became part of the EU strategy, France went through several processes of revising the asylum system, each time balancing the reception of European directives with the pursuit of a national agenda (Charles 2011; France terre d’asile and Forum Montesquieu 2015). It is thus important to understand which political priorities these reforms are intended to serve, and the framework built to sustain the present regime. The report Létard and Touraine (2013), from the name of the two rapporteurs to the minister of the interior on the process of reforming asylum policy, described the reception of asylum seekers as a “tradition” of which France has to be “proud”, but argued that this was “under threat” due to “massive economic migration” and a number of demands that “pervert” the reception rules. Furthermore, they argued that groundless demands caused delays and that these could be recognized earlier in the process (Létard and Touraine 2013, 5). The report called for “guided management” of asylum seekers entering France, “better geographical distribution” of reception in order to avoid the concentration of demands in and around Paris, and faster distinction between migrants who can be considered asylum seekers and others. Specific paths for return were

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suggested for these people as the rapporteurs observed that “their ‘home’ will not be in France”, and the countries of departure should be sustained in their “efforts at development” (ibid., 6–7, 63–64, 77–79). The Létard-Touraine report, which focused on potential refugees and basically ignored the massive presence of migrants already in France, constitutes a conjunction between the historical trajectories and the present situation, and registers arguments that have occupied the stage in the last decade. The reform of the system has not simplified the process but rather has made access to asylum more difficult in practice by increasing the duties and conditions of asylum seekers. One instance in this regard is the increased importance of the principle of “cooperation” with the competent administrative authority. Lawyers concerned about migrants’ rights have observed that the loose definition of what cooperation exactly means can result in random breaches of this duty: from ruined fingerprints to delays in communication and inaccuracy of written information, including misspelling (Gisti 2017, 17). The lack of cooperation and belonging to a country that is listed as ‘safe’ by the board of OFPRA, in compliance with the definitions and procedures described in the directive 2013/32/EU of 26 June 2013, are indeed two avenues towards a fast procedure that implies lower guarantees and acceleration of the whole process, including rejection. On the other hand, the scarcity of available places in the reception system, selective procedures and limited access to asylum in recent years have all contributed to the multiplication of new structures through “normative creativity” and informal arrangements, particularly in Île-de-France where most asylum seekers converge: emergency centres, temporary orientation centres, ‘humanitarian’ centres, along with the involvement of private structures such as hotels, social centres, community solidarity or outdoor settlements form today’s composite “landscape of reception” (Tardis 2017a). But even if France was only marginally affected by the surge in arrivals of 2015–2016, this situation has been considered by policy makers as the result of “unprecedented” migratory pressure and is listed as one of the main drivers of further changes in legislation. Critics argue instead that the structural scarcity of reception and the poor conditions of asylum seekers, along with the risk of detention before migrants can register and repressive operations such as evacuations of fortune camps presented as ‘humanitarian’, are deterrent and dispersal strategies employed by the state to reduce the attractiveness of the system and thus cope with the internal pitfalls of current asylum policies (La

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Cimade 2016). An accusation that proves to be accurate, if even president Macron, in a speech before the French preféts in September 2017, suggested that the “dogma” of “letting the line form so as to discourage applicants” has for years been an implicit guiding principle to discourage migrants in immigration offices (Macron 2017a). For migrants, this long-time practice has transformed the simple registration of a request for asylum into a race against time. Applicants struggle with deadlines for their registration and the obstacles interposed by public authorities. In case of delay, they risk the ‘fast procedure’, the rejection of their request and even arrest or detention. The condemnation of the prefect of Paris for delaying practices in 2016 shows that, time being a critical issue, even the booking system set up by the prefectures can result in the practical obstruction of the right to asylum (Collectif asile en Ile de France 2016). The perennial stress of the reception system and state bureaucracy contributed nonetheless to shifting the attention towards the selection of admissible demands before their proper assessment, and consolidated the idea that faster and more selective procedures would change the situation. The argument that without a distinction between proper refugees and others, particularly economic migrants, “the right of asylum itself will be questioned”, has become a shared discourse among policy makers, while the image of the ‘bogus asylum seeker’ has become the keystone of this perspective and one of the primary culprits of the so-called crisis of asylum (Akoka 2016; Le Monde 2017).

Multiple Scales The situation described above is strictly related to the positions France has taken in recent years in the European context. A useful exercise here is to analyse the present situation in perspective: one can observe, indeed, how the current ‘crisis’ has been preceded by other ‘crises’, most notably the so-called Tunisian crisis in the aftermath of the Arab Spring in 2011– 2012. French behaviour during the crisis reveals shifting interpretations of the Schengen space and different trajectories of Europeanization which are relevant to understanding the present positioning of the country. After the overthrow of Ben Ali, thousands of young migrants left Tunisia to reach the Southern European shore of Lampedusa, mainly with the aim of reaching France where, due to historic ties and the shared francophone language, they had families and friends. The events saw Italy and France deploying conflicting strategies: while Italy issued six-month humanitarian

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permits as a way to let Tunisians legally get beyond the Alps, France responded with border patrols and pushback at the French-Italian border at Ventimiglia. In order to stop border crossings by Tunisians with temporary Italian permits, France threatened to withdraw from the Schengen treaty, de facto pushing the EU to acknowledge the possibility of reintroducing controls at the border for a period of up to two years (Geddes and Scholten 2016, 154). France justified its decision by defining Tunisians as economic migrants, thus anticipating the current distinction between economic migrants and refugees. France also pointed out that according to the Schengen treaty, free circulation requires ‘sufficient funds’ and activated financial controls over migrants inside its territory and at the border. Just one year prior, France had used the argument of the irregularity of a housing settlement of around 1000 Roma people, EU citizens, to sustain their expulsion, again in the name of Schengen. As observed by Garelli, “in both cases, French raids were performed with a rule of efficiency” which included monthly and yearly targets for targeted evictions of Roma and expulsions of Tunisians (Garelli et al. 2013, 75–95). The conflict eventually led to an intervention by the European Commission which fostered the already present plan to Europeanize the decision process in case of crisis and over the management of Schengen, but it also represented a push towards a more interventionist policy in the Mediterranean area, specifically focused on selective migration policies. The Tunisian precedent shows that this approach and the very definition of what constitutes a ‘crisis’ are related more to changing political scenarios regarding the definition of a European regime, rather than the response to emergencies or specific European values. A legal assessment produced in the aftermath of the 2011 events argues that French authorities had to struggle in order to justify their actions according to the principles of urgency, proportionality and strict necessity associated with the possibility of reintroducing border controls in the Schengen space (Carrera et al. 2011, 18–21). At the same time, tensions between France and Italy revealed “a ‘race to the bottom’ […] as regards the principles of solidarity, mutual respect, loyal cooperation and fundamental rights protection” which are included in the Treaty of Lisbon, thus undermining “the overall consistency and legitimacy” of Europe’s migration policy (ibid., 19). These events thus show how the ‘crisis’ of 2015 merely revived existing tensions, which have also been used to justify restrictive measures and interventions abroad targeting the ‘root causes’ of migration (Geddes and Scholten 2016, 59).

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France has been particularly active in the attempt to promote intergovernmentalism of migration policies at the European level, especially in the field of asylum where international obligations are more visible. During its EU presidency in 2008, for example, France promoted the definition of ‘five points’ for a European pact on asylum which included the principles of selective admission, reinforced control of external borders, the fight against illegal migration, building a common policy and development of agreements with third countries (Wihtol de Wenden 2014, 66). Like other Member States, France attempted to transpose to the EU level its conception of selective migration management while at the same time being affected by the emerging EU border regime (Geddes and Scholten 2016, 67). While it attempted to externalize controls and activate a framework less dependent on the internal political debate, the implementation of a European framework in some cases reduced national discretion through directives and regulations and imposed supranational judicial controls through European institutions. For example, the extension of competence to the Court of Justice of the European Union (CJEU) in the area of immigration policy contributed to the EU’s normative framework penetrating the national context even beyond formal recognition of common rules, sometimes limiting France’s policy of ‘chosen immigration’, for example in the domain of family reunification (Arcarazo and Geddes 2012, 187–188, 190). The aftermath of the 2015 terrorist attacks confirmed these tendencies. The restoration of border controls and the declaration of a state of emergency, albeit without direct implications for immigration laws, affected the life of migrants and asylum seekers, including potential asylum seekers, as they increased French intelligence agencies’ surveillance capacity and the police’s discretionary power (Bertossi and Tardis 2015; Human Rights Watch 2016; Gisti 2016). However, studies of French parliamentary debates showed that discourse related to selective economic priorities remained overwhelmingly dominant when compared to other priorities, including security concerns and reference to national histories or civic values (May 2016). Thus rather than a race to securitization, the justification for more restrictive immigration policies reveals a mindset whereby immigration is considered almost exclusively as “a potential resource intended to benefit the host country’s economy in global competition” (May 2016, 287). This translates into migration policies that promote skilled migration while exposing unskilled migration to arbitrary acts and limiting the policies of asylum.

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A further element to be mentioned here is the close correlation between the external dimension of migration policies and a wider French international agenda, particularly in Africa, whereby France has signed at least 15 agreements that form part of France’s specific ‘sphere of influence’ in the Maghreb and sub-Sahara. The general rationale behind these migration compacts is to redirect mobility to match economic migration with the needs of the French economy: these compacts thus follow the key orientations of French immigration law as it has emerged over the last decade. However, this goes along with the emergence of a direct role for the EU in the region. The discourses on co-development and chosen migration can thus be analysed as tools that reinforce unequal relations on a new basis, where historic ties of national patronage become more open to global market needs and are included in the discursive and policy framework of the EU (Bovcon 2011; Hugon 2010). With national interests at the forefront, the relationship between the national and European scale is thus twofold: on the one hand, France can be seen as acting as a proxy of the EU insofar as it is able to obtain conditions that the EU is not in a position to negotiate–such as third-country national (TCN) clauses in agreements which allow the readmission of TCNs in signing countries—thanks to France’s greater direct leverage in terms of incentives and labour market access (Panizzon 2012, 122). On the other hand, France has had a pivotal role in promoting EU migration policy abroad. For example, France and Spain led the launch of the Rabat process in 2006— where shared responsibility in migration management, border controls, the fight against illegal migration and expulsions were declared an EU priority. Another recent example is the 2017 Euro-African meeting in Paris where the idea of a completely managed migration process, from origin to final destination, restricting asylum to people who are particularly vulnerable, was advanced (La Cimade 2016; Joint Statement 2017). We should also note that France, Spain and Niger have a joint police mission patrolling the northern region of Niger, a country by now deeply enmeshed in extended EU operations of migration control (La Cimade 2016, 25).

Logistification and Crisis In his speech before the French prefects in September 2017, President Macron outlined a “complete refoundation” of the system, stating that countries of origin and transit lie at the “heart” of migratory policies. He

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also argued for the effective management of all migration routes, instead of chasing an impossible ‘zero migration’ policy and struggling against what he called “the supply chain [filière] of clandestine immigration” (Macron 2017a). He thus announced a plan to include those entitled to the reception system, to speed up the evaluation process for asylum seekers and to be more effective in the expulsion of irregular migrants. Without being more specific, Macron mentioned Germany several times as the good example to follow, particularly in the field of efficient management and expulsions. Throughout his discourse, the issue of the need to ‘protect’ was framed so as to include the asylum system, the Schengen space, French citizens and the future of the countries of origin and transit by providing an alternative for development, thus leaving the need to protect refugees as a de facto side element of a complex political matrix (Macron 2017b). The goal of governing and selecting migration flows explains the attempt to limit family migration, the increasingly selective asylum system and the flourishing of detailed bilateral agreements. However, family migration and asylum are two examples of how migration escapes this governing logic: while the first reveals the relative stability of the immigrant community, the latter carries with it a number of rights that are difficult to contain within the idea of ‘chosen immigration’ inaugurated by Sarkozy and pursued since then. This, in turn, produces pressures to limit and circumscribe the right to asylum so as to make it more predictable and manageable. Coupled with structural insufficiencies and the bureaucratization of welcome policies described above, this reinforces a “moral economy” where asylum is becoming a conceded status, a hybrid between an act of benevolence and compliance with cold qualifications, rather than a proper right (Fassin and Kobelinsky 2012, 447). This marks an operative redefinition of the boundaries between immigration and asylum policies which implies a major shift in terms of the understanding of justice. The number and attempted meticulousness of bilateral agreements complements the tendency to imagine immigration as a fully regulated process, from origin to destination, thus pushing migration movements further towards the lenses of asylum. And while the process of regular migration becomes stricter and more specific so as to promote ‘chosen immigration’, the asylum seeker and the refugee emerge as flexible figures in a process of governance that is aimed above all at the efficient management of mobility, to the detriment of other concerns such as human rights, protection and global justice.

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Critical scholarship has described with the concept of logistification the emergence of a discursive and legal framework focused on the management of migration policies which overrides ethical claims (Altenried et al. 2018). Logistics is normally defined as an approach aimed at organizing a set of activities in order to “assemble and distribute the right products in the right amounts to the right locations in the right conditions” (Allen 1997, 116, Italics are mine). The concept of logistification of migration policies thus refers to an operational dimension that conflates the governance of migration with processes ideally ‘to the point and just-intime’ and recognizes the widespread adoption of concepts drawn from the science of physical distribution, such as hotspots, corridors, relocation or distribution centres (Kasparek 2016). The French case shows that this logistical fantasy, which considers migrants as mere objects of state policy and thus manageable as inert things, is one of the elements, in conjunction with other cultural, social and political factors, that has made the relative increase in the number of arrivals into a “crisis of the politics of asylum” (Akoka 2016). The ongoing process of reform in migration and asylum laws thus reflects not only the political contentiousness of migration, but also the multiple tensions that arise between migrants’ mobility and policies aimed at governing and, in bureaucratic and technical terms, optimizing dynamics that are by nature social and political. Even if it is only a fantasy, the adoption of a ‘subject-blind’ discourse and the idea of fully governed mobility has deep implications in terms of justice. In fact, the declared aim of establishing a controlled supply chain of migration from origin to arrival in France, which also assumes the logic of reverse logistics as incorporated in migration policies through readmission agreements and fast track returns, implies the imposition of operational principles over other values, leading to a “simplified differentiation” between refugees and economic migrants (Tardis 2017c). This narrows down the debate on legal economic migration to a discussion of highly qualified migrants, while the issue of asylum is trapped inside a paradigm of immigration control that makes rights and international protection increasingly empty principles. This also explains why France, the celebrated country of human rights according to Létard and Touraine, has gone from recognizing 250,000 out of the 1.6 million global refugees in 1960, to recognizing only 135,000 refugees out of the more than 10 million global refugees currently (Létard and Touraine 2013, 5; Fassin 2013, 8). This implies a radical inversion in the global distribution of refugees which runs contrary to the widespread announcement of the

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impossibility of “welcoming everybody”, reiterated by president Macron in his first end of year speech (Bonnefous 2017). The restrictions on access to labour markets for non-European foreigners, the redefinition of asylum as part of immigration control policy, limited access to asylum, the extension of waiting times and overflowing reception facilities have become structural elements of French asylum policies (Fassin and Kobelinsky 2012). One can observe how this has helped to create, rather than resolve, the physical sites of crisis observed at the French-Italian border, in Calais or in Paris. These are indeed “symbolic places” that illuminate structural elements which are hidden by administrative categories and political discourses (Tardis 2017b). Even if the state tries to break this deadlock by preventing the formation of sites that, due to their specific location and function, attract migrants, the fantasy of logistification is actually reproducing them or hiding them farther inside French territory or in third countries (AFP 2017).

The Emergence of Justice Minimalism The following section discusses the French condition against the background of global justice, starting with the conceptions of nondomination, impartiality and mutual recognition as described in the introduction of this book (Lucarelli 2021). Conceiving of justice as a contested and relational issue, these categories suggest that different voices and interests need to be considered when analysing a system of governance. As the French attitude towards migration is marked by different logics which can be broadly reassumed around the Republican discourse and ‘chosen migration’, one can begin by observing that the focus on the key values of French society, epitomized in the Republican Integration Contract (Contract d’intégration républicaine, CIR), resolves the long debate over multiculturalism in the name of the colour-blind supremacy of secularism (laïcité). This could be considered as going against mutual recognition, which implies the consideration of migrants’ subjectivity. However, as the experience of nationality-based associations exemplifies, conflating migrants’ subjectivity to their national or cultural belonging can result in channelling, rather than recognizing, their political voice and their specific claims, which often depend on their legal status rather than cultural aspects. On the other hand, the use of concepts such as that of ‘safe’ countries of origin, applied by France as well as other actors, imposes national belonging over other considerations as a way to discriminate, rather

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than recognize, thus paving the way to fast procedures and the rejection of asylum requests. This goes against the principle of protection as framed in the international regime of asylum, thus producing dominating effects which jeopardize the very idea of “contexttranscending principles” (Eriksen 2016, 14; see Lucarelli 2021). Different approaches depending on migrants’ nationalities, a long tradition in French migration policies, also run up against impartiality towards both migrants and third countries, as they build uneven avenues of mobility and influence as in the case of Franco-African relations. In the international system, states are entitled to regulate the access and status of non-citizens in their territories. So is France. However, this regulation may produce different layers of domination. The different durations of residency permits, of the certificate of asylum seeker with the normal procedure, the introduction of fast procedures and the suspended time of the so-called dublinées —migrants that according to the Dublin regulations should be returned to their first country of entry—show that each step of the process produces different forms of dependency on the state’s administrative structure. Moreover, the structural power imbalance between migrants and state bureaucracy gives the latter the ability to manipulate, slow down or accelerate procedures following shifting political goals, thus building further layers of subjugation. French law and procedures are indeed increasingly strict and firm regarding migrants’ duties with respect to time, but are far less persuasive when it comes to mandating time prescriptions for public authorities. Asylum seekers’ exclusion from any decision process is another element that runs contrary to both the idea of justice as non-domination and mutual recognition, because it implies the mere acceptance of rules and conditions imposed on them. Nevertheless, it must be said that this is a structural feature of migration law, which imposes regulations on the dynamics of mobility that often follow unpredictable paths. However, a discussion that remains focused on relations between states or supranational institutions runs the risk of being blind to the structural impact of international politics on migrants and asylum seekers. Indeed, a further source of injustice can be traced to the emergence of third countries as new actors on the international scene “inscribed in a politics of influence towards France, with the interposition of migrants” (Wihtol de Wenden 2014, 70). While vague references and a lack of clarity concerning human rights and the respect of the non-refoulement principle in bilateral agreements can undermine migrants’ rights and freedom,

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more subdued consequences are at stake. In fact, when migrants become bargaining chips in the relationships between states, what appears as domination between two states results in practice in an act of domination of both states over migrants, given that they become objects of international relations, rather than subjects of rights. Furthermore, the analysis of the French system suggests that the idea of political and social neutrality of rights is partly responsible for the transformation of asylum into a bureaucratic matter, where efficiency concerns and formalism promote a minimalist approach to ethical issues and prevail over the possibility of enlarging, rather than restricting, ethical and moral duties in a global perspective. This produces specific forms of “structural injustice” where arbitrariness and dominance derive not so much from direct subjection, but as structural preconditions or outcomes of formally justified rules (Young 2003). By implementing a logistical approach, France reiterates this structural ambivalence between legality and justice: it stands as an actor that complies with international commitments and follows a formal conception of justice as non-domination, but contributes to the reproduction of a system where relations of domination are present. This same ambivalence permeates French bilateral agreements, where uneven economic and military relations remain in the background, questioning the meaning of co-development, and its infraEuropean relations. Here, the crises at the border of Ventimiglia are an example of how the exercise of a recognized prerogative by France can result in an arbitrary outcome also for a bordering country like Italy, and vice versa (Panizzon 2013). Dominating effects can also be seen in the French position towards a common EU asylum system, if we consider that France has long opposed a reform of the Dublin system that would structurally shift responsibility from the first country of arrival to the whole EU, seeming to be more worried about the ‘burden’ of so-called asylum shopping than European internal solidarity. This position, formally respectful of non-dominating institutional arrangements within the EU, would turn into an act with dominating effects if we take into account that France has basically no external border in the Schengen space and thus can hardly be considered a first country of arrival. This chapter suggests that these outcomes can be better grasped as a result of specific normative claims influenced by the abovementioned search for logistification. In fact, what appears as a pragmatic and operational approach to dealing with ongoing ‘crises’ and emergencies actually entails the definition of normative claims which result in a minimalist

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approach to justice. The right qualities, quantities and times included in the definition of logistics provided above, translate indeed into a set of implicit normative claims which constitute the structure of this minimalist approach to justice, namely: it is just to differentiate between ‘economic migrants’ and ‘asylum seekers’ on the basis of conditions which are presumed to be objective. It is just to refuse migrants who do not suit the needs of the national labour market and to strictly regulate and constantly monitor their right to stay. It is just to partition off legitimate asylum seekers from ‘bogus’ asylum seekers, recognizing the former while moving the latter to a separate line as rapidly as possible and sending them back to their country of origin or a third country that is considered ‘safe’. It is just to work in partnership with third countries of origin or transit in order to filter migrants—regardless of whether or not they are ‘economic migrants’ or ‘asylum seekers’—before they reach the French border, or deport them back if they are already at the border or in France. Fifth, it is just to decide on the physical distribution of asylum seekers in the territory and to limit their right to mobility accordingly. Albeit affirmed as pragmatic necessities for the efficient governance of mobility, by now these claims have occupied an epistemic space where ideas of justice are depoliticized and deprived of their polemic content.

Conclusion A country with a long tradition of migration, France has recently adopted a discursive and legal framework that implements a managerial dimension of migration policies which can be described as logistification, a concept introduced by critical scholarship to analyse developments and discourses in Germany and the European Union (Altenried et al. 2018). This marks a functional and flexible redefinition of the boundaries between immigration and asylum which raises questions about the relationship between migration and justice beyond any specific national scale. In fact, the emergence of ethical minimalism and a predominantly operational approach to asylum, points to the need to update the discussion on global justice, considering how different dimensions of mobility are increasingly included in wider schemes of migration control. If this holds true, it implies that the peculiarities of the French case, including tensions around the Dublin regulation and the Schengen space, should be considered as integral to the formation of a new transnational setting in which the European Union Migration System of Governance,

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discussed in the introduction, has not yet found a balance. Rather than simple national resistance to common rules, the French case shows that immigration and asylum policies are becoming part of a government of mobility in which moral and humanitarian standards are at stake. The contentiousness and deeply political nature of migration policies are indeed blurred behind the veil of a logistical fantasy where the political subjectivity of migrants is neglected, and rights constitute a de facto secondary variable. In a context in which efficiency concerns promote a minimalist approach, compliance with international standards thus proves to be largely insufficient to respond to criteria of global justice. In fact, while the UNHCR statute claims that the issue of asylum can be of an entirely non-political character, the French case confirms that it has a political nature and produces partitions that intensify “the precarious existence for many while offering protection to a few” (Casas-Cortes et al. 2015; 17). The French case also shows that the claim to govern migration produces bottlenecks and breaches ideas of justice as non-domination, impartiality and mutual recognition, whereby faults with respect to one of these ideas can hardly be retrieved by compliance with others. The analysis advanced in this chapter suggests that the pursuit of rules which are acceptable for all points of view actually results in temporary legal fixes, which are constantly challenged by the turbulence that migrants introduce into the national space and the international community. This political conundrum, and non-objective conditions, transformed the relative increase in the number of arrivals to France and Europe in a single year into a “crisis of the politics of asylum” (Akoka 2016). While this shows that any idea of justice is confronted with this turbulence, it also points to the need to open up the space for thinking about different understandings of justice which are not rooted in the political logic of sovereignty, whether it be national or translated into supranational institutions, and in the logistical fantasy of controlled mobility, but rather in its contentious and contradictory nature.

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CHAPTER 7

Positional Insecurity and the Hungarian Migration Policy Attila Melegh, Anna Vancsó, Dorottya Mendly, and Márton Hunyadi

Introduction By the 2010s, in much of Eastern Europe including Poland, Hungary and the Czech Republic, anti-European Union (EU) and anti-migrant rhetoric had become dominant. Debates on migration have played a very important role in this development, particularly through the articulation of competing visions of what is ‘just’ in the area of migration and asylum. The Visegrad Group (V4—Poland, Slovakia, Hungary, and the Czech Republic) has been the most vocal in saying ‘no’ to what they term as acts of ‘domination’ by the European Union and other external actors towards East European nation states (EU-Members)—an accusation made for the first time in the historical process of EU integration. These developments

A. Melegh (B) · A. Vancsó · D. Mendly Corvinus University of Budapest, Budapest, Hungary e-mail: [email protected] M. Hunyadi Institute for Minority Studies, Budapest, Hungary © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_7

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have been framed and are related to the global context and long-term socio-economic processes. The case of ‘drifting away from liberal democracy’ in Eastern Europe and Hungary deserves special attention (Szelényi-Csillag 2015). Historically structured complexities, which often remain hidden in public discourse or appear in a simplistic manner, may be revealed in the handling of migration. This means that analyses should take a longerterm perspective and cannot simply start from the recent turn towards the extreme political right in Hungary. We should see and interpret visions of what is just in the context of persistent systems of inequality on a global scale and within blocks like the European Union. Hungary, along with other countries of the region, has never been a core country; most often it has been referred to as a classic case of a semi-peripheral (middleincome) country showing most of the peculiar symptoms, including strong economic dependence on core countries, unequal exchange of labour and capital, instability of democratic institutions and a constant fight for a better position in a system of unequal development. This middling structural position in global—and also intra-EU—hierarchies might also be behind the long-term tradition of not formulating clear universal ideas of global justice, as this has been left to countries with global influence. Thus, Hungary, embedded in global and regional hierarchies, is a peculiar case for the analysis of migration policy and narratives in terms of global justice. The most interesting aspects touch upon a specific combination of global justice claims related to justice as non-domination, impartiality and mutual recognition as defined in the introduction to this volume. The time frame of this analysis is mainly the years of the Orbán government, under which the otherwise marginal issue of migration has become a dominant one and has been used for various political purposes. The government has massively mobilized the population against ‘domination’ by the EU with regard to migration: it was said to be ‘imposing’ quotas to redistribute migrants (actually these quotas regarded asylum applications), coercing EU-level policy solutions on migration and refugee protection systems, all claimed to be in violation of Hungarian sovereignty. Hungarian government discourse claims that only unconstrained national sovereignty can be accepted as a guideline in handling migration and the flow of refugees, while other political actors thematize the need to give up sovereignty to find a ‘collective’ solution. The often-criticized policies and practices (building fences, obstructing

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access of refugees to the territory of Hungary, repressive state practices concerning the treatment of refugees) are the practical manifestations of these relationships and discourses. The aim of this chapter is to analyse the above policies and practices. First, we provide a short summary of the historical-structural context of migration in Hungary, with clear implications for the different justice logics at work on a collective, societal level. Then, we proceed with a review of the institutions and instruments of the Hungarian legislative system and its most important reforms from the point of view of migration and asylum policy, as related to global justice. We interpret legislative changes utilizing global justice concepts of non-domination, impartiality and mutual recognition, focusing on the peculiar logic of how these various forms, claims and violations are related to each other in the Hungarian case. In this dynamic analysis, we introduce three logics (blocks) of justice claims which we call ‘constrained compliance’, ‘positional insecurity’ and ‘redefining national positions’. These complex blocks of justice claims and violations show how positioning within imagined and/or materialized hierarchies/inequalities contextualizes the strategies of political actors, like the Hungarian government. Based on this, we claim that Hungary presents a case of a Westphalian idea of the state within a context of institutionalized openness within the EU and globalization, both of which recreate unequal positions within overall political and economic processes. In our argument, this contradiction leads to right-wing political radicalization and the attendant handling of migration on a discursive and policy level. Our analysis thus combines structural and ideational factors in understanding the institutionalization of global justice. We see a very important linkage between structural constraints, migration discourses and the ways Hungary’s migration policy relates to elements of global justice. A set of historically stable cognitive maps of global hierarchies tie together problems emerging from structural inequalities, most importantly within the EU and the ideational and discursive strategies of political actors (Melegh 2006). It is important to note that we do not see any kind of deterministic linkage either way. We thus follow Robert Cox and a neo-Gramscian approach in acknowledging that ideational and structural processes together shape historical developments (Gramsci in Forgacs 2000, 189–221; Cox 1983). A further methodological perspective is that in our analysis we also directly take into account imagined hierarchies. We see the latter mental

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hierarchies, meaning the set of West-centric beliefs and forms of knowledge which put ‘Europe’ and the ‘West’, in a dominant position, thus creating an idea of dominance by the West and the EU.1 In these forms of ideas, such actors are capable of setting a normative-institutional order in which Hungary has only limited possibilities for mobility and is generally constrained to an adaptive role (Bakic-Hayden 1995; Melegh 2006). We incorporate these mental hierarchies as hermeneutic contexts which give meaning to many ‘rules’ and ‘laws’ presented by EU law and EUlevel discourses. This we can also understand as a transformation, a kind of ‘jurisgenerativity’ as termed by Bottega citing Benhabib when she describes how laws are interpreted in a context of previously established rules and meanings that are often beyond control (Bottega 2017, 7). In line with this logic, mental hierarchies play not only the role of guiding interpretations in countries like Hungary, but also create political subjectivities. Thus, we see political identities which reject ‘non-European’ nationalisms in Eastern Europe in the name of a ‘superior’ and ‘civilized’ West as opposed to political identities which defend ‘truly European’ East European nations against Western ‘supremacy’ and a sense of superiority. In the end, these hermeneutic twists can explain international ‘dilemmas’, for instance the disharmony of national, European and international law (Ceccorulli and Lucarelli 2017, 12).

The Historical-Structural Context of Hungarian Justice Logics Historical Change and the Structure of Migratory Processes Since the late 1980s, due to intensifying competition in the world economy, evolving EU integration, changes in the international environment and shifts in demographic and labour market processes, the role of migration has been increasing in importance as a source of labour force and human capital. More and more regions and people have become involved in global systems of migration. This process has become very

1 In Eastern Europe, such West-centric mental hierarchies have been present for a longer time and have shaped not only elite perceptions but also, as we can see in a recent survey, public attitudes. For such literature, see among others (Neumann 1999; Todorova 1997; Böröcz 2000; Melegh et al. 2013, 2016).

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intensive in the European Union, where the ratio of migrants (by definition of country of birth) to the overall population has increased from around 7% to above 10% (UN International Migration Report 2017; Melegh 2017). On a macro level, these processes are linked to flows of capital, which radically restructure local economies and thus uproot people, triggering migration. There are other historical-macro structural changes due to persistent, long-term inequality, globally and within the EU, which began to intensify in the 1990s (Böröcz 2014; Fassmann et al. 2014; Melegh 2012, 2016; Kalb and Halmai 2011). These inequalities are combined with a relatively open space concerning migration, whereby material inequalities and institutional arrangements are very important historical-structural factors, not only behind migration but also behind ideational processes. Eastern Europe has shown increasing diversification of net migration rates (the balance of inflows and outflows of migration) over the course of the past sixty years. In the 1950s, it was more or less homogeneously a net emigrant region (with the exception of countries in the south-west of the Soviet Union). After changes that took place between the 1960s and 1990s, it lost this homogeneity and some parts became overall immigrant countries with a positive migration balance, such as Slovenia and the Czech Republic, while others became or remained emigrant areas and still have a negative migration balance, like Romania and Bulgaria (Melegh 2012). For a while Hungary tended to follow the path of becoming an immigrant country, but since the mid-2000s it has started to move towards an emigrant pattern, similar to Romania and Bulgaria and has experienced the loss of a younger, better educated and/or skilled labour force as these people move to Austria, Germany and the United Kingdom (Blaskó and Gödri 2014). In terms of economic income, Hungary was a relatively rich country in the region in the 1950s, and it increased its well-being with regard to the world and regional average up until the 1980s, when it entered a period of stagnation and even decline. This loss of developmental dynamics is especially visible when compared to the trajectory of other, previously migrant-sending countries such as Austria and Italy, which improved their relative positions dramatically in terms of economic well-being after the 1970s and became predominantly migrant-receiving countries. Around 1980, a new cycle of globalization of the world economy began, which resulted in the worsening of Hungary’s foreign indebtedness and stagnation which also characterized most East European socialist planned

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economies in the region in the following decade (Sklair 2002; Böröcz 2009, 134–135; Chase-Dunn et al. 1999). Neoliberal economic restructuring in the late 1980s and 1990s resulted in the decline of productive capacity (e.g. around 30% of industrial capacity), jobs (more than 1.3 million) and most importantly job security, the memory of which had major long-term consequences concerning migration. Based on mirror statistics, since the early 2000s a growing emigration trend is visible, albeit not at the level of Romania or Bulgaria. According to estimates utilizing the UN migration matrices based on censuses and stock data on country of birth, Hungary has had an increasingly negative balance of migration since 2008 (Földházi 2014). This rise in emigration and parallel economic restructuring has also led to a greater dependency on remittances, a trend which can also be observed in other former socialist countries (Böröcz 2014). These changes in the economic and related migratory processes are crucial, but the geographic patterns of migratory links (top five immigration sources and top five emigration destinations) should also be taken into account. These migratory links carry experiences, the mental map of migration of Hungarian society, and thus, they are prime factors in constructing mental maps of a society. During the last 60 years, the target countries of Hungarian emigration have not really changed, which shows how important historical links are in mass migration. As key countries, Hungarian emigrants have always chosen Austria, Germany, the United Kingdom, North America (the US and Canada) and to some extent Australia, and in the 1970s, Israel. Regardless of this striking resilience, we can also argue that Hungary, just like the whole region, has become more Eurocentric in its external relationships and has become more loosely connected to non-European emigration destinations. Even if we look at refugee flows since 1989 when Hungary signed the Geneva Convention on refugees, and especially since 1997 (when geographical limitations to the Convention were lifted) and up until early 2015, the cyclical inflows were based on incoming Hungarians (in the early years), Bosnians (1994– 1995) and Kosovars, while immigrants from Afghanistan, Pakistan and Iraq played a smaller role (Melegh and Sárosi 2015). Moreover, up until early 2016 only a tiny percentage of asylum applicants got some kind of protection status and only a very small percentage remained in Hungary to complete the whole process of asylum application (CSO 2017). Thus, Hungary did not establish persistent migratory links in this way. Even the massive outflow of refugees in 2015 due to the dramatic crisis in Western

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Asia produced by Western and local middle powers (Turkey, Saudi Arabia and Iran) and the crossing of the Hungarian border by hundreds of thousands of people did not substantially change the migratory picture and related mental maps. Concerning immigration, the key feature is that while the whole region including Hungary sends massive flows of people through the historically persistent migratory links to the ‘West’, it receives migrants only from the immediate surrounding region and further links are rare and relatively weak (like China, Vietnam or other areas of the world). Thus, from the late 1980s until the early 2000s, Hungary’s accumulated relative richness in terms of economic well-being increased the country’s attractiveness for prospective migrants from poorer ex-socialist countries in the neighbourhood facing even deeper internal crises like Romania or postSoviet countries like Ukraine, leading to an increase in immigration from these areas. In this context, due to the especially strong ethnic-historical links to Transylvania in Romania (which was until the early twentieth century an integral part of Hungary’s territory), that region became a key source of origin of migrants to Hungary during and after the collapse of state socialism in the region. Aside from Romania, Hungarian minorities in Ukraine and Serbia have also played an important role as immigration sources. Starting from an early high level, immigration stabilized in the 1990s at a lower rate with an inflow of 20–30 thousand people per year (Melegh and Sárosi 2015). The inflow of Hungarian speakers from neighbouring countries (like Romania) and the previous massive outflow of Hungarians living outside of Hungary towards the ‘mother country’ have led to a situation in which the main immigrant groups do not counterbalance emigration and they also do not match the ‘lost population’ in terms of young age composition, far better than local average educational levels and employment rates (Melegh and Sárosi 2015). Thus even in terms of migration there is a demographic ‘emptying’ process (population loss) or forms of integration into global flows which are unfavourable for Hungary and the surrounding region. Possible direct demographic ‘solutions’ include higher fertility and further immigration from outside Europe like China and most importantly Vietnam if the structural factors do not change, which might reduce emigration.

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Institutional Inertia and Institutional Developments: Migration and Asylum Policy and Practice in Hungary From an analytical point of view, it is very important to see what interaction develops between migratory structures and processes and the institutional frameworks the country uses for managing migration and population development. This background is vital to understanding the range of opportunities concerning institutional practices of global justice. Under state socialism, Hungary had no interest in developing a complex migration policy. After the fall of the socialist system in Hungary, the first legal change was to accelerate the return of Hungarians living in the West who had left the country or who may have lost their citizenship due to restrictive policies (Act XXXI of 1989). The government assumed that returning migrants would be ethnically Hungarian and refugees of a repressive political system in neighbouring Romania. Hungary thus received a large number of refugees from neighbouring countries, notably Romania, who crossed the border illegally and asked for asylum in Hungary due to ethnic and political repression in the sending country. Hungary also received a large number of refugees from East Germany who later got specific permission to go to West Germany through Austria. Legislation had to be changed again in 1993—due to the effects of the war in Yugoslavia (from 1991) as the number of immigrants and asylum seekers radically increased and the regulations in practice could not manage the situation. In 1993, the Act on the Entry, Residence and Settlement of Foreigners in Hungary or ‘Aliens’ Act’ (Act LXXXVI of 1993) came into force, tightening the 1989 law. As a result, the process of naturalization for a foreign citizen required eight years of residency in Hungary and at least three years of living and working in Hungary with a residence permit in order to gain a settlement permit (Blaskó and Gödri 2014). Finally in 1998 an Act on Asylum entered into force (Act CXXXIX of 1997) which ended geographical limitations for refugees and specified three categories of refugees with different procedures and rights: refugees (with basically the same rights as citizens), beneficiaries of temporary protection and persons granted subsidiary protection. The first phase of legal changes thus demonstrates that from the late 1980s Hungary opened up its legal system to international legal regimes. The next phase focused on joining EU legal regimes. During the EU pre-accession period, national rules and legislation on migration were adapted to EU

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rules (Tóth 2005, 2013; Tóth and Sik 2008). The 2001 Act on the Entry and Residence of Foreigners (Hungarian National Assembly 2001), the basis for free movement of EU citizens in Hungary, divided the legal status of immigrants into EU citizens and third-country nationals (TCNs); however, it preserved the requirement to obtain a settlement permit for both: a minimum of three years working and living in Hungary with a residence permit in order to obtain a settlement permit, or immigrant status. For TCNs, this period was eight years of residence prior to naturalization. Certain ethnic privileges were also built into the system, most importantly social and educational support for ethnic Hungarians living outside the country, and also certain forms of legal support when applying for Hungarian citizenship (Kántor et al. 2004). In the same period, Hungary, like other East European applicant countries, assumed all the relevant EU legislation concerning refugees and human rights. After joining the EU in 2004, both regulations and the institutional system for handling migration were transformed. Act I of 2007 on the Entry and Stay of Persons with the Right of Free Movement and Residence (Hungarian National Assembly 2007a) defined the rights of EEA citizens and Act II of 2007 on the Entry and Stay of Third Country Nationals (Hungarian National Assembly 2007b) that of TCNs. Importantly, after various precedents during the previous decade, in 2011 the citizenship law was also amended, offering full citizenship (provided within a couple of months) to any foreign-born person (residing or not residing in the country) who knows the Hungarian language, can claim historical Hungarian background, and had one ancestor who lived on the territory of historical Hungary (the Hungarian Kingdom before the 1920 Treaty of Trianon), in order to increase the privileges of people in neighbouring countries and those with Hungarian ancestry (Kováts 2011). This latter change and all the similar, previous attempts were aimed not only at the virtual ‘reunification’ of the nation divided up by ‘hostile western powers’ after the First World War (as seen in historical memory), but also the ‘emancipation’ of Hungarian minorities living outside the country, and specifically in less privileged countries like Ukraine and Serbia, giving them extra benefits (passport, etc.) as well as access to Hungary and the Schengen territories. In addition, the aim was to gain extra voters in Hungarian parliamentary elections presumably supporting the ruling nationalist government. The preferential treatment of ethnic Hungarians does not mean direct support for the immigration of ethnic Hungarians, as they are supposed to

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maintain Hungarian ethnic islands in neighbouring countries. Nonetheless, it does provide them with rights which enable them to move freely and to settle in Hungary—even if they come from non-EU countries. In contrast, TCNs without such a background have to follow strict and selective rules for gaining residence in Hungary, and the process of naturalization takes 11 (3 + 8) years in total. An immediate, ethnicity and historical territory based advantage is thus built into the Hungarian system of immigration among groups of migrants coming from globally diverse environments. Interestingly, against all the inbuilt ethnocentric logic, in 2012 the government created a special process for immigration, the so-called Residency Government Bonds programme. It provided easier residence and settlement for those who invested 250,000 euros (after 1 January 2015, 300,000 euros) in a special personal treasury bond issued by the Government Debt Management Agency (Hungarian National Assembly 2012). This programme was criticized primarily for reasons of transparency and security (Nagy 2016). It shows that the Hungarian immigration system uses various forms of privilege for immigrating to Hungary: the first one is ethno-historical, the second is EU-provided freedom of movement, and the third is a business logic aimed at certain groups within the category of TCNs who are not privileged in terms of ethnicity or EU citizenship. It also shows that the Hungarian immigration system has only a limited and very hierarchical global vision, a vision that somewhat contradicts otherwise widely accepted guidelines. It is also important to mention that the above institutional system is congruent with mental maps based on cognitive hierarchies as elaborated in the introduction. Such factors have been measured based on the distance Hungarian respondents feel concerning various migrant and ethnic groups (Papp 2017). Overall, compared to international standards the Hungarian public is relatively more negative towards immigrants and these attitudes have prevailed for at least the last 16 years. It shows longterm anxiety over incoming immigrants (regardless of their low number and huge ratio of co-ethnics among them) which was not created during the so-called illiberal turn of the Hungarian political system (Simonovits 2015; Avramov 2008, 88). These attitudes nonetheless vary according to specific groups. On the mental map of Hungarian respondents, the most ‘distant’ ones are the ‘migrants’, ’refugees’, ‘Arabs’ and the nonimmigrant ‘Roma’. The closest ones are people of Hungarian ethnicity living in neighbouring countries, and not very far are people from Western

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Europe and North America. Immigrants of non-Hungarian ethnicity living in neighbouring countries are a bit further, such as ‘Jews’ and ‘Chinese’ (Papp 2017). The important factor in the current context, beyond the almost consensual refusal of Arabs and refugees arriving in Hungary (who are perceived to be the ‘furthest’ from Hungarians in opinion polls used to examine the construction of mental hierarchies), is that West Europeans are also seen as somewhat distant, while at the same time this region is perceived as highly developed and influential related to Eastern Europe (Melegh et al. 2016). The peculiarities of the Hungarian case, as put forward in the introduction, unfold clearly in such surveys. With its specific position in global and intra-European hierarchies, Hungary occupies a middle position between West and East. In line with this, it has historically fostered an ambiguous anxiety towards the West, a mixture of the need to adapt and comply with its values and institutions alongside a fear of dominance. At the same time, it has viewed Europe’s ‘others’ (meaning generalized negative counterpoints in European identity, like the ‘orient’) with frustration, perceiving them not only as distant and different, but also as dangerous rivals in the constant fight for positions in age-old hierarchies. These tensions between political and economic interests, ethnocentric rhetoric and anti-immigrant attitudes explain why the country has not been able to create a migration policy based on universally accepted, systematically used rules, related to ideas of global justice (impartial use of human rights, rights of migrants being a vulnerable group, etc. see Eriksen 2016; see Lucarelli 2021). Rather, its migration policy is based on complex, historically built hierarchical logics. In 2013, the government produced a ‘Migration Strategy’ paper, mainly to justify programs based on the various migration-related funds supplied by the European Union (Government Decree 1698/2013). This government paper failed to address migration as a complex phenomenon with all its social, economic, demographic and cultural factors and repercussions, embedded in intertwined global and regional contexts. It focused only on immigration and mainly on non-Hungarians coming from third countries, as well as security issues and adaptation requirements that apply to nonHungarian migrants. The increase in emigration was ignored and, very importantly, the integration of immigrants and other policy elements were

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either covered very briefly or contained in promises of further government action, including an ‘Integration Strategy’, which has still not been finalized. Another major turning point concerns the treatment of refugees, which also shows how Hungary found ways to react to issues of global justice. With EU accession, as described above, Hungary fully implemented the related EU regulations. From 2013 onwards, following the arrival of a large number of asylum seekers from Kosovo—because of the panic stemming from Kosovar ‘Roma’ asylum seekers’ misuse of the system—Hungary started experimenting with various symbolic and real legal changes in order to slow down and even stop entirely the incoming flow of people seeking refuge. A more dramatic change started with the winter of 2014 and 2015 when the number of asylum seekers mainly from Western Asian countries rose massively from around 2000 to more than 40,000 by the end of 2014 and with the crisis year in 2015 more than 170,000 people in Hungary applied for asylum (most of whom left the country immediately). In reaction, in a series of legislative acts the government changed the legal status of certain countries, listing them as ‘safe countries’. The list included: all EU Member States, EU candidate countries (at first, except Turkey), Member States of the European Economic Area, US States that do not have the death penalty, Switzerland, Bosnia-Herzegovina, Kosovo, Canada, Australia and New Zealand (Government Decree 191/2015). Serbia and Turkey (which was added to the list following the EU-Turkey deal in Government Decree 63/2016) have been the main problematic points, as their status as safe has remained highly debatable due to the risk of chain-refoulement (Bakonyi et al. 2011). In the meantime, following the examples of Bulgaria (2014) and Spain (1993), Hungary built a border fence along the HungarianSerbian and later along the Hungarian-Croatian border. Continuing this line of action, between 2015 and 2016 the government criminalized illegal border crossing attempts which damaged the fence (Hungarian National Assembly 2015). This effectively introduced a ‘crisis situation’ due to extreme migratory pressure (Government Decree 41/2016) and the restricted rights of people who were seeking international protection (Government Decree 62/2016). In addition, it commenced a (largely) symbolic battle against the perceived ‘dominance’ of the EU in pressing for the ‘forced settlement’ of immigrants (the taking over of asylum applications to be considered by the Hungarian authorities, interpreted as a mechanism via which actual

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refugees are settled in Hungary, against the will of the government). This political struggle ended in an inconclusive referendum and a failed attempt to change the constitution in 2016. The initiative started when, in February 2016, the prime minister announced that Hungary should hold a referendum on whether the country would accept the proposed mandatory settlement quotas (the expression he used was not relocation or resettlement, but settling or settlement). The so-called Hungarian Migrant Quota Referendum was held on 2 October 2016. The referendum asked the following question: ‘Do you want the European Union to be able to mandate the obligatory resettlement of non-Hungarian citizens in Hungary even without the approval of the National Assembly?’ The wording might have caused some misunderstanding, as the attacked EU decision in 2015 was about ‘relocation’; the translation of the referendum into English used the word ‘resettlement’; but the referendum question was about future obligatory settling/settlement or more precisely ‘forced settlement’. As ordinary people—including representatives of the media—lack proper knowledge of the differences between the two (or even three) concepts, nor was it defined in any Hungarian legal documents, the goals and effects of the EU decision about relocation or resettlement could have been easily misunderstood. The referendum thus dealt with the future possibility of an EU decision on the forced settlement of non-Hungarians in the country. The turnout of the referendum was too low for the poll to be valid, although the government, stating its political validity (98% of the valid votes were ‘no’), tried to amend the Fundamental Law of Hungary to include the prohibition of settlement, which in the end also failed. The overall logic of such a system from the point of view of global justice evolves around the concept of claims of sovereignty which are not only traceable in migration discourses, but are also built into policies and practices concerning migration. Besides this, the state somewhat paradoxically retains a specific system of transnational relationships towards Hungarians beyond the border to respond to political, symbolic and economic needs. Thus, over the past years Hungary has constructed a combined system of immigration with special regulations for asylum seekers, EEA citizens and their family members, TCNs without Hungarian ethnichistorical background, and for foreign citizens with historical-ethnic ties to Hungary. This special system has been based on adopting EU legislation, international instruments and national legislation. This institutional

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system is crucial to understanding the manoeuvring of the Hungarian state among global hierarchies. First and foremost, it aims to ‘revitalize’ the nation by attracting preferred Hungarian or culturally ‘close’ immigrants to address labour market shortages and counterbalance the long-term process of demographic emptying and population loss. Ethnic Hungarians from neighbouring countries, apart from being ‘one of us’, also do not require too much extra effort to integrate culturally; thus, their immigration strengthens the national demographic and economic position. The system also complies with EU and international requirements, based on a conception of justice as impartiality; it, therefore, has the necessary legitimacy for any act as long as it stays within these frameworks. ‘National strength’ and formal approval from the international community are foundations on which the country’s position in global hierarchies (both structural and mental) can be maintained or even improved.

Manoeuvring Among Claims and Violations of Global Justice Altogether three interrelated logics can be identified in the claims, practices and violations of global justice within the Hungarian polity as related to the structural conditions mentioned above. The first one we may call constrained compliance which refers to the practice of formally satisfying (Western) universalist claims of global justice, mainly related to justice as impartiality and mutual recognition. The second can be termed positional insecurity, in other words, a kind of ‘middle-sibling syndrome’ rooted mainly in claims against interference and for mutual recognition related to the EU, while practising domination towards states that are deemed ‘weaker’ in perceived international hierarchies. Finally, the last one can be categorized as redefining national positions , the logic of which is formulated around ideals and practices of national expansion and revitalization mainly involving breaches of impartiality and practices of dominance. It is important to note that manoeuvring in migration policy and practice in Hungary should be viewed as embedded in a specific narrative context. This context, on the other hand, can only be understood in its relations to the European level: by looking at the EU Global Strategy, it is possible to identify six types of narratives on migration: ‘the economic-societal narrative’, ‘the values narrative’, ‘the security narrative’, ‘the resilience

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narrative’, ‘the selective narrative’ and ‘the global responsibilities narrative’ (Ceccorulli and Lucarelli 2017). The three-justice logics listed above relate in many ways to these EU narratives, as we shall see below. The Logic of Constrained Compliance As we have briefly demonstrated above, ever since the regime change Hungary has presented itself as a reliable partner of Western countries and their practices, rooted in the idea of global justice as impartiality, especially during EU accession. A further practical example of this is that it took part in several humanitarian interventions and continued its support for the operations in Bosnia, Iraq and Afghanistan along with a large number of peace operations which were only partially legitimized by ideas of impartiality or humanitarian protection (Providing for Peacekeeping 2015). However, it is noteworthy that the country’s above-mentioned priorities are also present: while Hungary takes an active and substantial role in Balkan operations, its engagements outside the European region are often limited and ‘half-hearted’, sending mainly unarmed military observers and technical personnel in small numbers. It is also to be noted that with this attitude Hungary does not use these policies directly for domination but ‘only’ follows the lead of greater powers, and such acts are mainly seen as satisfying responsibilities emerging from its alliance with the West and most importantly NATO. The above observations are also manifest in the limited global perspective and spatial distribution of its international aid. On an institutional level, the country shows little engagement with ‘global problems’, with relatively little money spent, and a rather limited geographic scope of Official Development Assistance (ODA), mainly concentrating on countries which are geographically close or have close economic ties to Hungary (OECD 2015). It is also clear that just like other East European countries, Hungary quickly adapted its legal system to the evolving body of international law—by joining international conventions on human rights (refugee protection for example) mainly to accelerate the process of Euro-Atlantic integration from the early 1990s onward (Tóth 2013). It follows that this process, while being formally adequate, remained deeply unreflective and did not lead to substantial internalization either in the political elite or in society itself. This means that, as in the case of the Viktor Orbán government, it has been easy discursively to take positions against international law claiming that Hungarian society could not relate to it.

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This logic of constrained compliance has then also allowed the formation of actual institutional and practical steps opposing these norms, as we could see in the above-described cases of non-compliance (institutionally attacking the quota system of the EU, building border fences, reducing access to the asylum application process, questioning any intervention based on human rights, and actively promoting the externalization of refugee protection—meaning support for the EU-Turkey deal, and for the proposal to set up hotspots not at the borders of the European Union, but outside). Hungary thus seeks opportunities to withdraw from forms of justice which are based on impartiality on a global scale. Positional Insecurity This logic can rightly be termed a middle sibling syndrome, as it encompasses a struggle against domination by the EU, the ‘elder sibling’ on the one hand, while exercising domination over ‘weaker’ partners, meaning those which are seen as culturally or ‘civilizationally’ inferior— the younger siblings (Melegh 2006; Bakic-Hayden 1995). In this logic, as opposed to constrained compliance, first and foremost we see the open governmental struggle against universal systems of refugee protection and human and civil rights obligations, discursively identified with the ‘West’. It is noteworthy that while these norms are basically the embodiment of justice as impartiality, in the rhetoric of the Orbán government they are translated and thus transformed into direct acts of domination (interference and imposition of rules harming the sovereignty of Hungary) by the European Union and the wider international community (Nagy 2017). The interlinking and often overlapping nature of the Hungarian justice logics might become clear at this point. They cannot necessarily be strictly separated on the level of actual policies and narratives, but on the more abstract level of the underlying systems of claims and violations supporting them and tracing out logics in their coherence. We can also see a strange reversal of the value narrative, in questioning values involved in impartiality for the sake of ‘true’ European values of defending the Christian and value-based ‘fundamentals of European culture’ (Ceccorulli and Lucarelli 2017, 6). The series of institutional changes included the questioning and contestation of the EU law concerning equally shared responsibilities, in which the most conspicuous issue evolved as a reaction to European Council decisions 2015/1523

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and 2015/1601, the so-called relocation decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece. The two decisions, as we demonstrated above, have been systematically termed by the Hungarian government as a ‘forced settlement quota’, interpreting EU proposals as arbitrary interference in Hungarian sovereignty. The government, apart from organizing a referendum against the so-called forced settlement, together with Slovakia, also attacked the above Council Decisions at the European Court of Justice, which eventually judged against the two countries (Press Release 91/17). Finally, reflecting the logic of positional insecurity, Hungary increased its efforts to block the return of asylum seekers to Hungary within the Dublin system (the system in which countries where applications have been submitted or the border of which has been cross illegally should receive back those who left the country for another EU Member State and should complete the asylum application procedure) during the so-called migrant crisis. The Hungarian government at various points asked for further deliberation, meaning that it put forward claims of mutual recognition on an EU level, in the name of East European and/or Visegrad countries (Visegrad Group 2015–2018). In the flip side of this logic of positional insecurity, emerging from the sense of being in the middle, Hungary has been keen to exercise domination over non-EU states, most importantly Serbia. The Government Decree of 2015, listing ‘safe third countries of origin’ and ‘safe third countries’, is a notable example. It can rightly be termed an act of domination, as it was produced without consultation with the states involved, thereby arbitrarily altering sensitive, interstate legal procedures. How it clearly impaired the interests of third states was especially clear in the case of Serbia, since the majority of asylum-seekers arrived in Hungary through the Serbian-Hungarian border. Following the decision, they were either prevented from crossing or had to return to the so-called transit zones, temporary detention facilities constructed on the border. According to an accelerated ‘border procedure’, the applicants had to stay there until a decision was made on their cases. The government replied to criticism regarding detention stating that the transit zones are ‘open towards Serbia’, meaning that asylum seekers could return to where they came from, thus leaving the management of the problem basically to Serbia. Positional insecurity and the attempt to draw harsher borders in the face of incoming groups perceived at a lower level of global hierarchies

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is also apparent not only in establishing border fences but also in establishing (by Act CXL of 2015) the concept of a ‘crisis situation caused by mass immigration’. This means a kind of state of exception in the Agambenian sense, allowing the government to use exceptional measures and to increase the use and the intervention capabilities of various authorities and the military. Redefining National Positions Related to the previous logic, we can see another mechanism through which various claims and violations of global justice are linked in the Hungarian case. While the logic of positional insecurity is reactive in nature, concerning the construction of an imagined middling position in which Hungarian discourses reject both ‘Europe’ seen as a dominant force and the ‘East’ presented as of lower value, the logic of redefining national positions introduces some active measures which aim to strengthen the relative position of the country in global competition (Feischmidt 2014; Glózer 2014; Feischmidt and Hervik 2015). The idea of non-territorial national expansion in the form of providing citizenship to non-resident populations is one of the key policy tools here, attempting to meet some of the economic needs and consequences of a hierarchical immigration policy (meaning the four-tier system with variation in the legally builtin preferences). Hungary has a need to counterbalance its demographic emptying via increasing immigration in an era of rapidly rising outmigration. This need is in tension with a migration policy system which negatively discriminates against all migrant groups which cannot claim historical-ethnic ties to the country, or, who are not EEA citizens. Thus, Hungary introduced a system of non-residential citizenship, as many of these ethnically and historically tied people were thought to be of help in counterbalancing the ‘weakening of the nation’. On the top of demographic and economic issues, there was also the claim to politically reunite the nation, via the provision of electoral rights—also consolidating the power of the Orbán government. This is also a policy tool to stress that immigration from culturally similar areas, thus avoiding cultural, religious and linguistic diversity, is welcome. This building of a homogeneous nation impedes Hungary in building an immigration policy based on impartiality and/or universal rights. Since in this logic a homogeneous nation is a strong nation, this technique can be seen as demographic, cultural, economic and political

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revitalization aimed at improving the standing of the nation in global hierarchies. Related to the previous scenario of a middle sibling, this logic also entails elements of domination over countries seen as ‘weaker’. For example, the country introduced double citizenship without consulting the concerned states’ governments: as of Act XLIV of 2010, ethnic Hungarians can be naturalized on preferential terms. This aimed at the unification of the Hungarian nation in its symbolic sense, including those ethnic Hungarians who have been excluded since the Treaty of Trianon of 1920. This highly political decision was not conciliated with these countries, specifically with those prohibiting dual citizenship, and it caused tensions in bilateral diplomatic relationships especially in the case of Slovakia, but also Ukraine (Danero Iglesias et al. 2016, 26–30). The violation of cultural recognition of migrants can be seen in the handling of their integration and not providing a voice for them to raise their own concerns. The Hungarian Migration Strategy of 2013 could not integrate the processes of migration (most importantly immigration and emigration), which could have given a basic impartial perspective of handling both the rights of outgoing Hungarians and incoming ‘foreigners’. This lack of a combined view has become very clear as the Hungarian government has been trying to reduce various forms of immigration while at the same time has been fighting for the rights of outgoing Hungarians (Melegh 2016). The document also promised the construction of a universal perspective for an integration strategy for all migrants but this has never been adopted. The unequal recognition of migrants can also be demonstrated in the longer-term policy in which those immigrants who do not form an accepted ‘historical minority’ (are not from Serbian, Swab, Croatian, Romanian, Ukrainian, etc. origins) have no access to media or local self-governmental rights. This lack of recognition is the clearest with regard to refugee groups whose integration support has been removed (Government Decrees 62/2016 and 446/2013, Sections 8 (d) and 36 (2) b) and have not received any form of cultural autonomy in which they could formulate their own concerns. Such authoritarian shifts link the above logics of global justice and thus provide the specific profile of Hungary in international public debates.

Conclusion In order to understand the point of view of legally institutionalized ideas of global justice (impartiality, non-domination and mutual recognition)

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in Hungary, we need to look not only at various governmental steps and regulations, but also at the longer-term development of migratory processes and the gradual formation of the institutional framework regulating migration into and out of the country. Hungary can be seen as a special case with regard to clearly articulating various tensions among elements of global justice, its attempts to trace out a nationalist opposition to EU and international law, and working out a nationalist understanding of the preservation of sovereignty above all, selectively employing international law as a tool of state policy preferences. It is also special with regard to the acute understanding of manoeuvring within global hierarchies and making the element of non-domination concerning migration a special focus within the European Union. The case of Hungary has also revealed some of the inherent tensions of regulating migration within the EU, and by the EU. Thus, some of the conflicts should be seen as a result of the interplay between smaller East European states and major European powers whose ‘partners’ have very different structural positions and migratory backgrounds. It is very clear that some of the East European countries which serve as outmigrant regions, satisfying much of the labour needs of Western Europe (most notably Germany), do not share the interests or perspectives of those substantially richer countries which have been following active immigration policies for a longer period of time, and moreover, had global colonial linkages outside of Europe. The above contradictions and tensions, together with the power techniques of certain elite groups in Hungary, have led to a process in which the country is following a radicalization dynamic. In this process, various forms of justice are advanced and attacked more and more intensively, which we see as an inbuilt radicalization process, a kind of ‘Westphalian fundamentalism’. Paradoxically, this is the trap of positional (and ontological) insecurity for nation states which struggle with the historically structured inequalities that come with being middle-income semi-periphery countries. This overall insecurity is combined with a demographic, bio-political and moral panic, attacking previously accepted systems of global justice, including the emptying of the international systems of impartiality to defend the human rights of those who suffer from political domination and discrimination in the name of defending the idealized, traditional order of the local population (Kitzinger 2000). The moral panic can be understood as claiming to ‘protect the population against various enemies’, without actually formulating substantial policies

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to handle structural problems—the solution of which would be a better basis for constructing a revised system of justice in Hungary.

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CHAPTER 8

Norway’s Approach to Migration and Asylum as a Non-EU State: Out, But Still In Espen D. H. Olsen

Introduction Norway is one of the few European countries that are not members of the European Union (EU). Rather it has structured its connections with European institutions and organizations through membership in the European Economic Area (EEA) and a host of other agreements and accessions to EU policies (Eriksen and Fossum 2015). Moreover, Norway has a long-standing tradition of active internationalism through the United Nations and its many organizations, championing human rights and being a forerunner in state-led foreign aid programs for developing countries (Taulbee et al. 2014). There has been considerable consensus in Norwegian society and politics on this line of policy which also has been an integral part of the country’s foreign policy. Migration policies stand at the juncture between border control, domestic politics, international obligations and geopolitics. In this context, it is of interest

E. D. H. Olsen (B) Oslo Metropolitan University and Arena, University of Oslo, Oslo, Norway e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_8

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to address Norway’s migration policy in the light of being an ‘active’ nonmember in the European integration process. While not discussing this in a comparative fashion, the chapter will highlight how Europeanization (while being a non-member) has added complexity to Norway’s broad migration policies, from the rights of labour migrants to the reception and processing of asylum applications. Being a non-member has not meant that Norway has ‘gone alone’ in migration policies but rather has aligned with EU policies, also in the much-debated migration crisis. The discussion of Norway’s migration policies starts out from the vantage point of three conceptions of global justice (see Eriksen 2016; see Lucarelli 2021). The time period for the definitional analysis is for the most part recent developments, with a main focus on 2009–2016. Such recent developments are analysed as part of an ongoing development, thus also taking into account previous practices. In terms of sources, the chapter relies on primary sources such as legislation, official reports from the Norwegian government and secondary literature. The method is qualitative and interpretive, taking operational definitions to task in search of recent developments, changes and possibly inertia in concepts related to Norwegian migration law, policies and practices. Moreover, this work is not comparative but rather traces the development of migration practices as a single case study within the wider context of European migration policy. This is, however, not based on historical analysis, but rather it focuses on different categories of migration such as labour migration, free movement within Europe and the category of asylum seekers and refugees. The concept of global justice implies that there are certain conceptions of justice that have a cross-border reach, that is, they are at play in a polity’s external relations. In this volume’s introduction, Sonia Lucarelli outlines three conceptions of justice and how these can be utilized to analyse the justice properties of migration systems in different nation states.1 The three are justice as non-domination, justice as mutual recognition and justice as impartiality. Conceptions of global justice are relevant as migration concerns trans-border and transnational relations involving individuals, political and legal institutions, states and ultimately some notion of universal human rights. The different analytical conceptions 1 These build on Eriksen (2016) which has outlined three theoretical conceptions of justice that can be utilized to study the contributions the EU make to global justice. See also Lucarelli (2021).

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of global justice build on different operationalizations of aspects such as reasons for action, the rightful claimants of justice, main substantive concern, legal structures and organizational principles of global politics. This chapter addresses the extent to which the Norwegian migration system adheres to one or more of these conceptions. The analysis uses the conceptions as heuristics to highlight main aspects, changes in direction and broader developments in Norwegian migration policy. Such heuristic analysis is not exhaustive, but the chapter covers some main forms of migration, such as asylum and economic migration. The chapter proceeds in the following manner. First, it starts out with a brief historical overview of migration to Norway, with a specific focus on migratory waves, policy developments and integration with Europe. Second, it reports on analyses of relevant definitions of concepts related to migration and global justice. In so doing, the chapter also highlights some main policies and practices in the migration field with special emphasis on the last two decades. The main onus in this part is on the link between migration law and principles, on the one side, and state practices (as these are visible in return policies and the use of so-called land information), on the other side. Fourth, and building on these two analytical moves, the chapter attempts to analyse how Norwegian migration policy adheres to the three conceptions of global justice. Finally, I offer some concluding remarks.

Migration to Norway: Brief Historical Background Norway is not known as a country of immigration, say, in the vein of the United States, France, the United Kingdom or Germany. Until the 1960s, Norway was not marked by any significant flows of migrants. The end of World War II ushered in a new sense of urgency in the creation of a socially and economically inclusive Norwegian society. In the first decades after the 1945 settlement, a specific form of government emerged in Norway. This would become a historical compromise between labour and capital where the different interests and stakeholders agreed to cooperate pragmatically for the sake of both state-driven economic progress and socio-economic inclusion of all classes in society. The issue of migration was not high on the agenda in this period. In institutional terms, Norway was a signatory to both the United Nations Declaration on Human Rights (1948) and the Refugee Convention (1951). In this sense, Norway institutionalized basic principles such

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as the right to apply for asylum and non-refoulement, that is, the right not to be returned to one’s country of origin in case of serious threats to life or freedom. Moreover, the regulation of foreigners and access to Norwegian territory was part of the budding Nordic cooperation of the 1950s. With the signing of the Nordic Passport Union (1952) with the other Nordic partners (Denmark, Finland, Iceland and Sweden), Norway instituted passport-free travel in the region. In other words, Norwegian migration policies at this time not only differentiated between citizens and non-citizens, but also accorded special status to Nordic citizens through free movement across regional borders. Towards the end of the 1960s and the beginning of the 1970s, Norway started to see an increase in migration. This happened in conjunction with a larger European trend of increased labour migration both internally in Europe and from countries outside the continent (Messina 2007). This new wave of migrants was almost exclusively labour migration to lowskilled jobs. The main sending countries of migrants to Norway were Pakistan, Turkey, Yugoslavia and other countries in Southern Europe (Kjeldstadli et al. 2003). This trend did, however, dissipate after 1975 when a halt in immigration was passed by the Norwegian Parliament. Then, migration streams turned towards categories of persons in need of protection: mainly refugees through the UN refugee quotas and asylum seekers. Most notably, a main tipping point in Norwegian migration history was the arrival of refugees fleeing the wars and conflicts of former Yugoslavia. In the period from 1991 to 1994, more than 22000 individuals were granted asylum and residence in Norway. These were mainly from Bosnia and Herzegovina and Kosovo (Kjeldstadli et al. 2003). There were some debates on this move by the government, but there was broad consensus that this was necessary for humanitarian and moral reasons. It did not, however, turn into a general principle of Norwegian migration practice, but rather the approach would be on a case-by-case basis. The latest wave of migration to Norway has occurred in the last decade. First, there was an increase in refugees and asylum seekers during and in the aftermath of the wars in Afghanistan and Iraq. Second, in the period from 2014 to 2016 Norway also saw its share of increased migration to Europe on the back of the Syrian civil war and increased geopolitical tensions in the Middle East. This latest development led to extensive debates on asylum policies, reception of asylum seekers and the future of integration policies. The debates have centred on issues of integration, cultural

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practices, religion, as well as on the impact of Norway’s participation in the European asylum system. At the beginning of the migration crisis, there were calls for a humanitarian approach of more ‘open’ borders. This was an argument heard mostly from the left of the political spectrum. The major parties including the Labour Party, the Conservatives and the Progress Party all advocated the need for a strict, yet what they called fair migration and asylum policy. All these parties agreed, for instance, on the suspension of the Schengen Agreement in November 2015, as an effort to control and contain the rising flows of migrants in the European migration crisis. There was less agreement, however, on the broader aspects of Norway’s place within the European asylum system. Currently Labour and the Conservatives favour Norway’s deep participation in EU asylum policy, while the Progress Party exhibits stronger voices of dissent, especially with regard to border controls.2 It is clear that the context of Norway’s migration policies has changed over the course of the post-war period. Starting out as a moral issue of post-war rebuilding, it soon became one of increased embeddedness within international structures of cooperation. First Nordic cooperation and later Europeanization clearly marked the Norwegian approach to the issue of migration. It set Norwegian migration practice somewhere between universal concerns for human rights (such as refugee issues) and particularistic concerns for regional integration (such as the Nordic passport union). Moreover, increased internationalization coincided with the transformation of Europe into a continent of migration, both intra- and extra-European. Norway was not as strongly affected by the early waves of ‘guestworker’ migration as countries like Germany, the Netherlands or Sweden, but took its share of intra-European migrants following Eastern enlargement. It is against this rich background of domestic choices and international developments that we can assess Norway’s migration practices, and especially new developments in the recent decade. I trace these practices in the next sections of the chapter.

2 At the time of writing, Norway is ruled by a minority coalition government of the Conservative Party and the Progress Party (since 2013). From 2005 to 2013, a majority coalition government was in office comprised of the Labour Party, the Centre Party and the Socialist Left Party.

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Migration Practices: From Labour Migration and Free Movement to Asylum Policies in a Europeanized Context In the European context, Norway first developed migration policies outside the framework of EU policies and legal principles. Since joining the EEA in 1994, however, Norway has become increasingly integrated into European policies and institutions (Finstad 2014). Norwegian law on migration is regulated by different legislative arrangements. Utlendingsloven3 (the Immigration Act) is the main piece of legislation regulating the entry to national territory of foreigners and their eventual residence there. There are also certain regulations4 that the government and its ministries can issue, which do not need to go through the legislative process, but need to be in accordance with existing law. Finally, Norwegian migration law exists in a context of European law as well as human rights conventions and other international treaties. As an EEA member, Norway is bound by the EU treaties where these apply. In the case of migration, this has specific consequences for labour and economic migration to Norway due to the rights attached to free movement and non-discrimination based on nationality. Moreover, Norway has decided to take part in the Schengen system of passport-free travel in Europe as well as the Dublin system on asylum applications, since 2001. The European Convention on Human Rights and other more specific human rights codes have also been part of Norwegian law since 1999. The domestic laws and principles on migration are, then, bound by these pieces and principles of international and supranational legislation. Labour Migration and the EEA Dimension When non-Nordic migrants started to enter Norway in the 1960s, there was no real migration policy in place. There were of course legal instruments in terms of citizenship laws and notions of foreigners and their

3 Norwegian Ministry for Justice and Public Security (2008), ‘Lov om utlendingers adgang til riket og deres opphold her (utlendingsloven)’, LOV-2008-05-1535, last amended LOV-2016-06-17-58 from 21.10.2016 and LOV-2016-06-17-58 from 01.10.2016. Available at: https://lovdata.no/dokument/NL/lov/2008-05-15-35 [Accessed 29 March 2017]. 4 Forskrift in Norwegian.

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right to stay in the territory. Yet labour migrants could relatively easily gain access to Norway. Through work contracts and continued stay, many of these first migrants obtained residence, first temporary, but after some time also permanent residence. This state of affairs was not questioned until the mid-1970s. There is not much research on the societal and cultural reception of these guest workers in Norway, yet there are indications that they were by and large tolerated exactly because these persons and groups were perceived to be ‘guests’ (Eriksen 2002; see also Castles 2006). Guests as it were are not designated to become permanent residents: they will eventually leave. A main turning point would come in 1975. The Norwegian Parliament passed what was later called ‘the immigration ban.’5 This did not lead to a complete closure of Norwegian borders. The intention was, first and foremost, to limit labour migration and the growth of a guest-worker community. There were certain exemptions for specialists of different professions (for instance, physicians, academics or engineers), and there was still a possibility for current resident non-citizens to seek family reunification. Moreover, international conventions on refugee and asylum responsibilities were not set aside. It constituted, however, a signal of a willingness from politicians to deal with migration flows through policy-making. The immigration ban was voted on in a situation in which economic growth was in decline and unemployment was on the rise. The initiative for this migration policy came from the left, and specifically from organized labour unions. The main argument was the need to safeguard the Norwegian labour market from outside pressure in a time of pressing economic concerns. This was at a time when free movement across borders was still mainly a European idea, not a European reality, at least not for the countries on the continent’s periphery. At this time, Norway had just rejected membership of the European Communities in the 1972 referendum, and labour migration was for the most part from third world countries. The immigration ban did not exhibit any clear stance on the European dimension of migration. It was legislated as a national issue to solve domestic problems. It is, however, a clear example of a turn from a more laissez-faire type approach to migration to one where issues of inclusion and exclusion came to the fore. Migration became an issue which was not only about securing cheap labour in an

5 The Norwegian phrase is ‘innvandringsstopp’.

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expanding economy, but also about managing the labour market in an increasingly interdependent world. The immigration ban was a first attempt to regulate entry to Norway in a more coherent manner. The reasons for this policy move were mainly related to political economy, more specifically labour relations and the specific configuration of labour and capital in post-war Norwegian society. Any decision to regulate entry into state territory is necessarily exclusionary. In research on migration, rights, and citizenship, such acts of exclusion have been interpreted in different ways. Two opposing views are found from communitarians who justify exclusion as the right of communities to ultimately choose their own members (Walzer 1983) to cosmopolitan arguments which hold that any physical or legal border between states is arbitrary and therefore unjust (Carens 1987). In reality, the politics of border control and restrictions on migration always straddles the individual/community nexus. In post-war Norway, this had not been a pressing political issue until the mid-1970s. From then on, migration became part of the public debate and over time increasingly a question of what kind of political community Norway is and should be. Indeed, this ‘politicization’ of labour migration remained in place in the ensuing decades. Norway still had a strict regime on migration for economic reasons in this sense. Yet, this applied only to extra-European citizens. After a nearly eventless decade of the 1980s in terms of policymaking on issues related to migration, there were major turning points in the 1990s and 2000s. In terms of labour migration, these turning points were, however, not fuelled by the need to curtail or enable migration for domestic reasons, but rather as a consequence of the Europeanization of legal frameworks, policy solutions and individual rights. As Norway is not a member of the EU, this is especially important. Despite the lack of formal membership, the country’s policies are embedded in the institutional and legal system of European integration. As a member of the internal market through the EEA agreement, Norway has to uphold the basic principles of free movement of persons and non-discrimination based on nationality, which are at the core of European integration (Olsen 2014). EU citizens have the right to move freely to Norway in order to work or study. The upshot of this is that Norway through the EEA has become part of the common European labour market where all EU (and EEA) citizens can exercise their right to free movement in order to work in other Member States. This has created a new concept of migration where there is a distinction between intra-

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and extra-EU migrants. In the wake of this, there has been a considerable increase in labour migration from the EU to Norway, most notably from countries in Central and Eastern Europe (Norwegian Ministry of Children and Equality 2011, 164). After the EU’s Eastern Enlargement of 2004–2007, migration from Poland and Lithuania has surpassed that of Sweden as the source countries with the most migrants in Norway.6 The status of economic migrant in Norway is determined, then, by two co-existing legal sources. The first is the Immigration Act and the second is European legal principles and policies that have been transposed as Norwegian law as a result of the EEA agreement.7 In fact, part of this EU jurisprudence was included in the new Immigration Act of 2009. This is important as there is no general right to economic migration to Norway from non-EEA countries. For an economic migrant to have a right to residence, then, he or she needs to be at least 18 years of age, not take up an occupation on terms worse than those settled by collective agreements, be the recipient of an offer of a contract, and he or she has to be an EU or EEA citizen. For non-EU/EEA citizens, there can be exceptions based on other international agreements or eligibility in cases where there is no Norwegian workforce available to perform a specific task. The government can also give specific reasons for why in some areas there may be a need to import workforce from abroad. As such, economic migration to Norway is limited. The ‘economic migrant’ is increasingly equated with the status of holding EU citizenship or citizenship of one of the other two EFTA states that are signatories to the EEA agreement together with Norway—i.e. Iceland and Liechtenstein. This practice of labour or economic migration was arguably strengthened with the Eastern enlargement of the EU from 2004 to 2007. With this enlargement, new EU citizens from Eastern and Central Europe gained access to the Norwegian labour market with the same rights as, say, Swedes. Norway saw some labour migration especially from Poland before EU enlargement. This was, however, not comparable with the influx of workers and self-employed persons to Norway after enlargement.8 This 6 In 2017, there were 97,196 Poles, 37,638 Lithuanians and 36,315 Swedes registered in official statistics, see Sandnes (2017). 7 For a broader overview of the impact of EU law on Norwegian law and politics, see, for instance, Eriksen and Fossum (2015). 8 The annual number of migrants entering in Norway from Eastern European Member States of the EU increased from 2528 in 2004 to 19,946 in 2014, see Thorsdalen (2016).

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new type of migration in numbers was initially not seen as problematic, with some exceptions of calls from labour unions to monitor social dumping and safeguard long-standing collective agreements (Valenta and Strabac 2011). After some time, however, more voices of dissent have emerged, spurring political debate on the consequences of what was perceived as large-scale labour migration. Two issues in particular have been at the forefront of the debate on intra-European migrants in Norway. Firstly, there has been considerable debate on how such migration affects working conditions, possibly undermining collective agreements and exacerbating processes of social dumping as seen above (Eldring et al. 2012). Migrants from Central and Eastern Europe are often low-skilled workers or they offer services in construction or domestic cleaning, to name some sectors of the economy. The construction sector is clearly marked by this new immigration to Norway, with pressure on prices and consequently wage structures. Such challenges have particularly been raised by political parties on the left and labour unions. Secondly, the issue of social rights that follow from the exercise of free movement has been debated and problematized: first by political parties on the right and later by parties from across the political spectrum. The right to free movement is at the core of EU citizenship (Olsen 2012). This becomes a transnational rights status with ‘bite’ as it grants EU (and EEA) citizens extensive rights within and from the country in which they work and reside. Social and economic rights are foremost in this EU rights register. What does this mean in practice and how has it been perceived in the Norwegian migration discourse? EU citizenship rights extend to the family of the rights holder. A consequence of this is that workers with legal residence in Norway have access to extensive social benefits that are purely residence-based, and not linked for instance to occupation status or based on one’s savings. In Norway, there is, for instance, a basic and universal child allowance accorded to all families, as well as a ‘cash stipend’ for families with small children who do not get a place in state-funded day care. These basic economic benefits are, however, portable; this is at the core of the debate on intra-European migration and welfare state benefits. Portability means that someone who works in Norway has a right to such benefits although his or her family does not reside in Norway. This creates a situation of so-called welfare benefit export that is now widely questioned by many political actors

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in Norway. A public commission9 (Norwegian Ministry of Children and Equality 2011)—the so-called Brochmann Commission—on the future of the ‘Norwegian’ model in the age of migration focused on these issues and has become a central reference point in welfare state politics. The Brochmann Commission highlighted a need for closer scrutiny of the short- and long-term consequences of welfare benefit payments to recipients outside of Norway. The commission showed that most of these benefits were paid to recipients in the Nordic countries and Western Europe (ibid.: 255), but still highlighted the potential for a significant increase in such payments as a consequence of free movement of persons in the EEA. This was followed up in a second commission again led by Grete Brochmann (Ministry of Justice and Public Security 2017) on the long-term consequences of migration for Norwegian society. Again, the report highlighted that the relative expenditure on this is not very high. Yet, the commission did point out that the idea that access to rights should in some way be ‘earned’ before they can be redeemed is gaining traction in Norway. The status of EU or EEA citizen gives added power to this right to have rights based on residence. Europeans from the EU/EEA area who work and reside in Norway have at the outset the same set of rights as Norwegians when these fall under the remit of the EEA Agreement. It is interesting, then, that the questioning of the short- and long-term sustainability of certain flat-rate welfare benefits to EEA citizens and their families has not been discussed. Politically, there may be good and prudential reasons for some restrictions on the portability of such rights, but is this legally viable? To hinder the portability of welfare rights could be categorized as an impediment to free movement and discrimination based on nationality. In other words, rights and how these are interpreted in an internationalized and Europeanized context is at the core of these issues of labour migration.

9 Public commissions are government-mandated expert and stakeholder bodies that in part lay the ground for new policy-making in Norway. For an overview of the Norwegian system, see Tellmann (2016).

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Asylum Policies, Institutions and Practices in a European Migration ‘System’ Asylum and refugee policies are complex. They are linked to human rights principles and international legal conventions but are also part of the political debate in most European countries. These policies relate to individuals, but also to groups and in the end are a reflection of what kind of political community a state has, especially in the case of so-called ‘receiving’ states. The question of asylum relates to the issue of rights. There is an inherent right to apply for asylum in a state other than that of one’s citizenship on various grounds. Different from economic or labour migration, asylum seekers and refugees make claims due to special circumstances requiring protection as the main grounds for immigration to a new country. The asylum application process is comprised of a two-tier system: (i) processing of asylum application and (ii) appeals of decisions of the initial asylum application. In legal terms, Norway has an asylum process that is within the parameters of both the national constitution and international legal obligations. The Immigration Act is an important piece of legislation also in the field of asylum and refugees. The tendency in recent years has gone in the direction of a more restrictive practice in terms of granting protection. This policy change started with the former centre-left government in 2008 and has been continued by the current right-wing government (November 2015).10 This restrictive agenda on migration and asylum was in many ways a culmination of the increased attention to migration among political parties and in public debates. It is clear that the tide has turned on migration in Norway since the 1990s, not the least as the major parties such as the Conservatives and the Labour Party have changed stance as a consequence of the rise of the largely migration-sceptic Progress Party. Statistics show that from 2010 to 2015 the percentage of asylum applications granted increased from 51 to 75%.11 One explanation for this may

10 The so-called asylum settlement was in the end supported by all parties in the Norwegian Parliament, with the exception of the Socialist Left Party and the Green Party. 11 Larsen et al. (2015) ‘Stadig flere har krav på asyl i Norge’, NRK, 8 October. Available at: https://www.nrk.no/norge/tre-av-fire-asylsokere-far-bli-i-norge-1.12590862 [Last accessed 29 March 2017].

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be that the more restrictive policy has resulted in less so-called ‘groundless’ applications in Norway than before. It is not within the remits of this chapter to make a legal assessment of the justifiability of this policy change seen against existing international legal frameworks. In the Immigration Act, the main international obligations that are referred to are the principle of non-refoulement taken from the 1951 Geneva Convention, as well as the extensive impact that the transposition into national law of the Dublin Regulation (below) has on rules regarding asylum seekers and the processing of applications. Norway is part of the European asylum system after entering an association agreement to the Schengen Area in 1996 and operatively integrated from 2001. Equally important, Norway became part of the Dublin System in 2001, with the latest Dublin Regulation (the so-called Dublin III) transposed into Norwegian law from 2014. This Europeanization of Norwegian migration policy has been supported by all governments since the mid-1990s, albeit with some dissenting voices, especially on the left. This was particularly the case when Norway made its first move of becoming Europeanized in this area with association and later membership in the Schengen Area. Some argued at the time that this would lead to Norway becoming part in a burgeoning ‘Fortress Europe’ where internal mobility was ‘traded in’ for stronger control of extra-European migration to European territory (Mathiesen 2000). As time has passed, participation in the EU asylum system has become accepted and tolerated by most political parties and actors, yet with new criticism of free movement and diminished border control coming from, for instance, the Progress Party. Despite such criticism, there are no possibilities in the near future of new coalitions that could end Norway’s participation in the EU’s asylum system. The reason for this is that there is a deep cleavage in the Norwegian political system regarding extensive integration into the EU despite non-membership. Coalitions on both sides of the political spectrum are marked by this cleavage. This has led to a political stalemate in which the status quo is preferred over change, both in terms of Norway’s membership status and strong participation as a non-member (Fossum 2010). In this sense, Norway is fully committed to the main principles of EU asylum law and politics as this has been developed since the Maastricht Treaty (1992). Foremost, this means that Norway adheres to the principle of ‘first country of asylum’ and is committed to returning asylum seekers to the European country where they were first registered for the handling

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of their asylum applications. It can be therefore said that Norway’s migration policies as well as its concept of ‘migrant’ have become Europeanized in the last two decades (see Norwegian Ministry of Foreign Affairs 2012). In this sense, its status as a non-EU state is at the outset not legally relevant as Norway has committed to implementing EU asylum policies. Indeed, in replying to the latest round of policy developments in the EU to finally institute a Common European Asylum System (CEAS), the Norwegian government in 2016 maintained its intention to support this development. Of course, this leaves Norway dependent in legal terms, yet without due political influence in the policy-making of this legislation. This does not mean that asylum policies and practices are not publicly debated in Norway. On the contrary, such issues are high on the political agenda. The status of non-accompanied minors, for example, has received increased attention in Norway in recent years. Moreover, media attention has made the public more aware of their predicament. The multi-party asylum settlement in the Norwegian Parliament further removed the socalled reasonableness clause of previous policies. For instance, this clause was devised so that returns could not be effected if there was danger of further internal displacement of the person after return. Another example is the recent debate in Norway on whether countries such as Somalia and Afghanistan can be deemed ‘safe countries’. The debate on these issues has centred mainly on the issue of unaccompanied minors and their status when they reach adult age, that is, 18 years. The government has decided to carry out such returns despite the fact that several national and international NGOs such as the Norwegian Association for Asylum Seekers (NOAS) have strong reservations concerning the security situation, for instance in Afghanistan with special emphasis on the Kabul region.12 The returns are also in accordance with the recent agreement between the EU and the Afghan government on the handling of ‘irregular migration’ to European territory from Afghanistan.13 This

12 https://www.vg.no/nyheter/innenriks/afghanistan/norge-tvangsreturnerer-flestbarn-til-afghanistan/a/23793615/ [Accessed 3 November 2017]. 13 European Union External Action Service (2017), The EU -Afghanistan Joint Way Forward on Migration Issues, https://eeas.europa.eu/sites/eeas/files/eu_afghanistan_ joint_way_forward_on_migration_issues.pdf [Accessed 13 November 2017].

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is, moreover, in line with the Norwegian government’s stance to support and aid the EU-Turkey Agreement on migrants.14 The ‘politicization’ of asylum debates has, however, been ‘counteracted’ by a clear trend towards depoliticization of the asylum process in terms of the procedures and institutions involved. As seen before, since the 1990s there have been significant discursive and policy changes on migration in general. In the most significant turn in 2001, the Norwegian Parliament decided to overhaul migration policy, especially in terms of how applications and appeals are handled in cases of asylum and family reunification. The Norwegian Directorate of Immigration (UDI)15 retained the role of first instance decisions on such applications. A new, independent government body called the Immigration Appeals Board (UNE)16 was formed to serve as a body for appeals. In this sense, I would argue that Norway ‘depoliticized’ decision-making on individual cases in the migration field. Previously, the ministry in charge could overturn decisions made by the UDI. The decision process on applications on asylum and family reunification is now handled by these government agencies based on existing laws. Changes in practices need first to be decided on in the political process and cannot be instituted on a case-to-case basis by political authorities. In other words, migration policies and practices in Norway are no longer ‘political’ in the decision phase, but rather determined by technocratic and administrative rules and institutions. In the last years, the process of asylum decisions has, then, arguably become ‘streamlined’. It has been detached from political decisionmaking and rather become the subject of what can be called ‘agencification’ (see Verhoest 2013). After the interview conducted by UDI, the case goes back to the case officer for review. In this part of the process, the case officer can utilize information on the country of origin from LANDINFO. A prime example of depoliticized asylum practice, LANDINFO was put into operation from 2005. The main task of this independent unit within the foreigner administration is to provide information that can be used by the other agencies and units of the administration that deal 14 Ministry of Foreign Affairs (2017), ‘Norway in Europe—The Government’s Work Programme for Cooperation with the EU 2017’, https://www.regjeringen.no/en/ dokumenter/work_programme_2017/id2536921/#migration [Accessed 13 November 2017]. 15 Utlendingsdirektoratet in Norwegian. 16 Utlendingsnemnda in Norwegian.

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with case decisions. The task of LANDINFO is to act as an independent government unit, providing information on typical sending countries. This information is then used by the agencies deciding on asylum applications and appeals, most notably with regard to the safety of return. LANDINFO regularly publishes reports on the security situation and political status of sending countries as well as on significant regions within them. It can further provide reports on religious and ethnic minorities and their status in specific countries. The establishment of LANDINFO in 2005 was not subject to much political or public debate. Yet it is arguably a very significant turning point in Norwegian asylum practices. This development cannot be traced back to a direct push for Europeanization as such; however, its clearly depoliticizing traits are well within the bounds of the efforts in the recent decade to streamline an asylum system perceived as inefficient and taxing both politically and economically for EU Member States. Interestingly for the purposes of understanding practices, the methods utilized by LANDINFO are directly related to guidelines emanating from EUrelated sources. In the chapter on ‘methods and critical sources’ on its website, LANDINFO mentions guidelines from the Commission,17 EUsupported networks of ‘country origin institutions’18 and the European Asylum Support Office (EASO).19 In other words, the Norwegian asylum system ties directly in with European-level efforts to provide benchmarks for sound and effective handling of asylum applications. While the basic rules and legal parameters of asylum practice regarding individual cases are based on law-making in the Norwegian Parliament and political decisions in the government, administrative best practices are closely tied to processes at the international level.

17 European Union, EU Common Guidelines on (Joint) Fact Finding Missions: A Practical Tool to Assist Member States in Organizing (Joint) Fact Finding Missions, November 2010. Available at: http://www.refworld.org/docid/4d0246f79.html [Accessed 3 November 2017]. 18 European Union, Common EU Guidelines for Processing Country of Origin Information (COI), April 2008. Available at: http://www.refworld.org/docid/48493f7f2.html [Accessed 3 November 2017]. 19 European Union Asylum Support Office (EASO), Country of Origin Methodology Report, July 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/whatwe-do/policies/asylum/european-asylum-support-office/coireportmethodologyfinalla yout_en.pdf [Accessed 3 November 2017].

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The latest turn of events in migration and Norwegian society and politics came with the so-called migration crisis. Between 2014 and 2016, there was a marked increase in the number of refugees and asylum seekers entering Norwegian territory. In 2014, the authorities registered 11,480 asylum applications, with a very significant increase to 31,145 in 2016. This development led to an overburdening of the migration apparatus and extraordinary measures had to be taken to register and accommodate the increased number of refugees. Moreover, the influx came from new areas in the Middle East as well as through new refugee routes, such as the one through Russia to the northern Norwegian border crossing of Storskog. Part of the government’s response was to temporarily suspend the free border regime of the Schengen agreement by reinstating border controls. This decision made by the government in November 2015 was taken after similar decisions by the Danish and Swedish governments, hence highlighting the strong interconnectedness and transnational character of migration issues in contemporary Norway. The Minister of Justice, Anders Anundsen from the Progress Party, stated that ‘[t]his is a measure to gain better control of the influx of refugees.’20 The minister moreover explained the decision as part of an effort to pursue ‘(…) a strict and fair asylum policy.’21 For 2017, the statistics show, however, a very sharp decrease in the number of applications to only 3460, the lowest number since 1997.22 Since 1975 the main thrust of Norwegian migration policy has been strengthened, that is, the notion of closed borders in terms of economic migration has been bolstered. It has been reinforced through a new regime for handling migrants who arrive in Norway and for processing of their applications, say for asylum, residence permits or family reunification. In the latest development from November 2015, a parliamentary majority reached a compromise on Norwegian asylum policy whereby the aim was to tighten the rules for asylum and family reunification, while cases involving children were to be treated more leniently according to 20 Ministry

of Justice and Public Security (2015), ‘Introduction of Border Controls’, https://www.regjeringen.no/en/aktuelt/introduction-of-border-controls/id2 464073/ [Accessed 14 November 2017]. 21 Ibid. 22 Ministry of Justice and Public Security (2017), ‘Statistikk om innvandring’, https://www.regjeringen.no/no/tema/innvandring/innsikt/statistikk-om-innvan dring/id2339904/ [Accessed 13 November 2017].

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the parties to the compromise. The migration issue is high on the political agenda and often debated in terms of both the integration of immigrants and the ‘sustainability’ of the expansive Norwegian welfare system (see Olsen 2018).

The Norwegian Migration System and the Three Conceptions of Justice Like that of most nation states, Norway’s migration policy is based on a strongly territorial logic. The admission and access of foreigners to state territory is premised on the notion of the state as a gatekeeper to membership. This is in fact migration practice at its most vivid. Regulating access has concrete consequences, both for the individual migrant and for the receiving society. Walzer (1983, 32) gives a useful definition of access to membership and how this is regulated by nation states in the system of states: ‘(…) we who are already members do the choosing, in accordance with our own understanding of what membership means in our community and of what sort of community we want to have. Membership as a social good is constituted by our understanding… and then we are in charge of its distribution’. This is in some sense, then, based on the notion of membership and access to territory as something exclusive. In such a view, Norwegian migration policy is closer to justice as non-domination than the other two notions. The criteria for access to the territory and ultimately for accessing citizenship through membership are to be the same for any foreigner and migrant. Moreover, there is a general ‘right to have rights’ also for migrants under Norwegian law. This principle means that unless specified by law, legal resident migrants hold the same rights and duties as Norwegian citizens. This is, then, not a relationship based on reciprocal rights between equals. It is rather law-based equality with the possibility of ‘reasoned’ or reasonable inequality based on an idea of citizenship as the only full access to the whole catalogue of rights provided by domestic law. In other words, it can be said to adhere to an effort to avoid arbitrary practices of this inequality, as differences in rights should be legitimate and law-based. Such a law-based system for regulating entry into the territory of the state is common for democratic nation states. In reality, however, such a system can be marked by different kinds of practices in terms of decision-making on entry and residence. A continuum from political to technocratic can be used as an image of this situation. This is important to notice as decisions on migration in

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terms of entry first to the territory, second to residence and third to citizenship, are political at the core. Entry is a social good distributed by a concrete political community. In some states, decisions on certain forms of entry are political (for instance, in the Parliament), while in others politics decides on the rules which are then put into practice by non-political actors (such as bureaucracies and government agencies) (see, e.g., Janoski 2010). As will be highlighted in the remainder of this chapter, Norway has increasingly programmed migration decisions at the technocratic end of said continuum. Given Norway’s increasingly strong interconnectedness with the EU and EU legal principles, one can argue that its migration law in part approximates a notion of justice as impartiality. Economic migrants in Norway are basically EU or EEA citizens who exercise their rights under EU law (Olsen 2014). Rights settlements are not confined to the national level alone as in the classical understanding of justice in the modern state system which underpins the notion of justice as non-domination. Rather, the rights of individuals who are EU or EEA citizens on the domestic level in Norway are subject not only to the national system of rights, but also to supranational rules and principles. Rights to free movement and the principle of non-discrimination based on nationality are, then, part of the Norwegian migration regime. This system goes beyond a system in which states are the primary claimants of justice. Individual citizens as Europeans can make claims against the Norwegian state based on EU-wide legal principles. Yet, there is no ‘universal’ right to economic immigration to Norway: it is limited to EU and EEA citizens. In this sense, in terms of economic migrants, we cannot deem this as close to a notion of justice as mutual recognition. It is a territorial extension of rights to the transnational realm, where the notion of national belonging is less prevalent for rights attribution. While transnational, it is, however, still limited only to EU citizens. Arguably, this transnationality falls somewhere between the first two notions of justice as non-domination or impartiality. Clearly, the principle of non-discrimination based on nationality rests on an understanding of a negative freedom where, for instance, a worker should be exempt from arbitrary disadvantage in the transnational labour market as a result of his or her nationality. Yet it is also clear that this does not extend to a cosmopolitan law for all in a universal sense, which would be a requirement to meet the more demanding precepts of justice as impartiality. This chapter has not highlighted any lack of respect

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for basic human rights, and the Norwegian state adheres to its obligations under European treaties and agreements. Yet, it is at best ‘bounded’ adherence to an idea of impartiality. The definition of economic migrants in Norway, through the ‘EEA connection’, is quasi-cosmopolitan in its extension of rights to non-citizens with EU citizenship or nationality in an EEA country, yet it falls short of universality in a true cosmopolitan sense. Rights as economic migrants in this Europeanized setting are not human rights: they are transnational rights which extend the territorial remit of rights considerably. This is not theory, but rather is embedded in everyday practices of migration law and politics. EU citizens have the right to free movement, which exempts them from traditional border practices. They are not subjected to demands at the borders, such as showing passports or exhibiting proof or right to entry through visas. Migrants of other categories (economic, refugees, asylum seekers, etc.) are subjected to much more rigorous border regimes. In practice, these migrants undergo different kinds of screening and identity verification depending on their status upon entry into Norway. This is no different in Norway from other European states, especially since Norway is part of both the Schengen and Dublin systems of migration control. The issue of justice conceptions in the field of asylum seekers and refugees puts, arguably, the question of human rights to the forefront. The right to apply for asylum is indeed a human right that cannot be violated. Any individual can make a claim to persecution and lodge an application for political asylum in another country. This country, then, has to comply with this human right, assess the veracity of the claim and make a decision. Norway is a modern state based on democratic principles and the rule of law. All three conceptions have a notion of democratic rule of law at the core. But which one fits better with Norwegian asylum and refugee policy? Asylum seekers and refugees are per definition in an asymmetrical relationship with the receiving state and its citizens in terms of resources and rights. This is, however, the case for every territorial nation state. Discussing the adherence of a country’s asylum policy with the different conceptions of justice should, therefore, focus on the individual-state relationship, as well as broader issues of legality, equality and due process. Furthermore, such issues cannot be properly understood without also taking into account practices. In this sense, it is obvious that Norwegian asylum policy as it has been defined in this chapter falls somewhere between two conceptions of justice: non-domination and impartiality. A main principle in the legal

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definitions of asylum seekers and refugees is that the categories for protection should be clear. Moreover, there is clearly an effort in the legislation to avoid arbitrary decisions that may harm some individuals more than others; this points in the direction of a notion of impartiality, whereby the rightful claimants of justice are individual human beings. Yet there is also a tendency in Norwegian migration practices to put the onus on territorial control, thus adhering to some form of state-centred nondomination. The more rights-based conceptions also fall by the wayside when we look at state-to-state relations and practices in asylum affairs. This is for instance the case when Norway decides on so-called safe countries for returning migrants and failed asylum seekers. This is, in practice, clearly not a system in which mutual recognition or impartiality trumps the state logic. The concept of justice as mutual recognition demands a clear onus on the receiving state to evaluate the specific individual needs of the migrant.23 There is no evidence that the individual is funnelled out of the Norwegian migration system, yet in a critical perspective, some issues point towards a more ‘collectivist’ thinking in dealing with migration. Regarding the issue of return, Norwegian asylum practice has gone down the ‘collective’ route by focusing on making clear that certain countries are safe for all migrants who originate from them. The Norwegian authorities decide on safe countries based on information from LANDINFO which is an independent government agency. The recommendations from LANDINFO rely on an array of sources such as information from state institutions, international organizations and the media (see Landinfo Landinfo 2017, 1). Safe country decisions have been disputed both by the UN High Commissioner for Refugees24 and by official representatives of sending states such as Afghanistan.25 It is interesting, then, that LANDINFO highlights the uncertainty of sources and the potential lack of information, for instance in parts of Afghanistan (ibid.: 1–2). In some reports, such as the one cited here, LANDINFO

23 I thank Sonia Lucarelli for making this point clear to me. 24 Crouch, D. (2016), ‘Norway Criticised over Deportation of Asylum Seekers to

Russia’. The Guardian, 19 January. Available at: https://www.theguardian.com/world/ 2016/jan/19/norway-criticised-over-deportation-of-asylum-seekers-to-russia [Accessed 29 March 2017]. 25 News in English (13 December 2016), ‘“Horrible” Refugee Returns Questioned’. Available at: http://www.newsinenglish.no/2016/12/13/horrible-refugee-returns-questi oned/ [Accessed 29 March 2017].

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moreover acknowledges that the source material may be lacking in certain areas. It also highlights that some sources of information may be skewed as certain actors have a need to maintain a certain image or projection to other actors. Nevertheless, in practice, such qualifications of the data upon which a technocratic agency like LANDINFO bases their decisions, do not seem to be problematic in terms of making decisions with far-reaching consequences for migrants. Afghanistan is deemed safe for the return of migrants who have not been granted asylum or temporary residence in Norway. Politically, the Norwegian government and the parliament have passed laws and regulations in recent years to tighten up asylum practice, most notably to decrease the number of asylum applications that are granted. From documents and LANDINFO’s own information, we cannot extrapolate that this is reflected in technocratic decisions as such. Yet, from the results of this policy shift, it is relatively clear that asylum practices have become more attentive to broader policy goals, than to the asylum seeker himself, thus foregoing any strong adherence to justice as mutual recognition. This must be said to put a dent in any interpretation of Norway approaching anything more than a very modest conception of justice in asylum issues. Some may even argue that the system of LANDINFO is unjust from the standpoint of the individual migrant as it funnels out the ethics of migration. In this sense, the ethics aspect could be a stronger part of a political debate on, say, safe countries, than when it is delegated to independent bureaucrats. Norway seemingly does not adhere to the reciprocity which forms the core of justice as mutual recognition as it can be doubted whether it has sought to ‘(…) establish cooperative arrangements and active dialogues with affected parties in order to determine what would be the right or best thing to do in any given circumstance’ (Eriksen 2016, 20; see Lucarelli 2021). Such a conclusion on adherence to conceptions of justice should of course be read with the caveat that more in-depth research is needed for a more thorough scrutiny of the Norwegian asylum system. Still, the analysis of certain practices in this chapter has provided a skeleton of descriptions on which further analysis and research can be developed.

Conclusion In this chapter, different conceptions related to Norwegian migration, asylum and refugee policy have been discussed. A relatively recent historical phenomenon to Norway, migration is rapidly becoming an

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increasingly important topic of political debate and policy-making. As any territorial state, Norway is part of a system of states, with effects on the logic of membership and gatekeeping on access to the territory and to residence. This system has, however, become more ‘porous’ with supranational actors such as the EU, international legal obligations and increased interconnectedness in cultural and economic terms transforming the nation state. The analysis has highlighted a Norwegian migration system that has become increasingly complex in terms of ‘insiders’ and ‘outsiders’ as a result of the Europeanization process from the 1990s onwards. Despite an immigration ban from 1975, there is considerable economic migration to Norway due to the principle of free movement and non-discrimination in EU and EEA law. Parallel to this thrust of Europeanization through individual rights, Norway has also become increasingly integrated into the European asylum system through implementation of both the Schengen Agreement and the Dublin Regulation. In addition, this chapter has highlighted how decision-making bodies and governmental agencies take heed of European best practices in the execution of Norwegian (and European) asylum rules. This was especially visible in the technocracy of providing information on safe country decisions for the return of migrants. The analysis argued for a certain form of ‘agencification’ in this sense, where ethical issues of migration are funnelled out in a turn towards a more bureaucratic form of asylum processing. Such ruleoriented migration practices are not unjust at the outset, but this opens up a discussion of whether individual cases become submerged under ‘groups’ or ‘collectives’ in, for instance, return policies, as these become based on country reports. In this sense, Norwegian migration practice straddles the analytical divide between different conceptions of justice. The territorial logic of migration control necessarily points towards justice as non-domination. Still, in terms of economic migration there is a movement in the direction towards justice as impartiality in the equal treatment and non-discrimination principles for EU and EEA citizens. On the other hand, parts of asylum policy clearly stand in the way of realizing the more demanding notion of reciprocity in the conception of justice as impartiality or mutual recognition.

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References Carens, J. (1987). Aliens and Citizens: The Case for Open Borders. The Review of Politics, 49(2), 251–273. Castles, S. (2006). Guestworkers in Europe: A Resurrection? International Migration Review, 40(4), 741–766. Ceccorulli, M. (2021a). The EU’s Normative Ambivalence and the Migrant Crisis: (In) Actions of (In) Justice. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 33–56). New York: Palgrave Macmillan. Ceccorulli, M. (2021b). Italy and Migration: Justice on this Side of the Mediterranean. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 119–145). New York: Palgrave Macmillan. Eldring, L., Fitzgerald, I., & Arnoltz, A. (2012). Post-Accession Migration in Construction and Trade Union Responses in Denmark, Norway and the UK. European Journal of Industrial Relations, 18(1), 21–36. Eriksen, E. O. (2016). Three Conceptions of Global Political Justice. Globus Research Papers 1/2016. Oslo: Arena, University of Oslo. Eriksen, E. O., & Fossum, J. E. (Eds.). (2015). The European Union’s NonMembers: Independence Under Hegemony? London: Routledge. Eriksen, T. H. (2002). Multi-Ethnic Norway and Norwegian Immigration. International Journal of Humanities and Peace, 18(1), 92–110. Fassi, E., & Lucarelli, S. (2021). The EU Migration System and Global Justice: An Assessment. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 259–277). New York: Palgrave Macmillan. Finstad, F. B. (2014). Norges tilknytning til EUs justis- og innenrikspolitikk. In E. O. Eriksen & J. E. Fossum (Eds.), Det norske paradoks. Om Norges forhold til Den europeiske union. Oslo: Universitetsforlaget. Fossum, J. E. (2010). Norway’s European “Gag Rules”. European Review, 18(1), 73–92. Grappi, G. (2021). France and Migration Between Logistification and Ethical Minimalism. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 147–171). New York: Palgrave Macmillan. Janoski, T. (2010). The Ironies of Citizenship: Naturalization and Integration in Industrialized Countries. Cambridge: Cambridge University Press. Karamanidou, L. (2021). Migration, Asylum Policy and Global Justice in Greece. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 89–117). New York: Palgrave Macmillan.

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Kjeldstadli, K., Tjelmeland, H., & Brochmann, G. (2003). Norsk innvandringshistorie, vol. 3: I globaliseringens tid 1940–2000. Oslo: Pax Forlag. Landinfo. (2017). Respons: Afghanistan: Sikkerhetssituasjonen i provinsen Uruzgan. Retrieved June 11, 2017, from http://www.landinfo.no/asset/ 3553/1/3553_1.pdf. Lucarelli, S. (2021). The EU Migration System and Global Justice: An Introduction. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 1–32). New York: Palgrave Macmillan. Mathiesen, T. (2000). Siste ord er ikke sagt. Schengen og globaliseringen av kontroll. Oslo: Pax. Melegh, A., Vancsó, A., Mendly, D., & Hunyadi, M. (2020). Positional Insecurity and the Hungarian Migration Policy. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 173–197). New York: Palgrave Macmillan. Messina, A. (2007). The Logics and Politics of Post-WWII Migration to Western Europe. Cambridge: Cambridge University Press. Ministry of Children and Equality. (2011). Velferd og migrasjon: Den norske modellens framtid. Norwegian Official Reports NOU 2011:7. Retrieved March 29, 2017, from https://www.regjeringen.no/contentassets/7a3754 20185844a1bfacbbd7698bf13e/no/pdfs/nou201120110007000dddpdfs. pdf. Ministry of Foreign Affairs. (2012). Utenfor og innenfor: Norges avtaler med EU. Norwegian Official Reports NOU 2012:2. Retrieved March 29, 2017 from https://www.regjeringen.no//d3982d042a2472eb1b20639cd8b 2341/no//nou20122012000dddpdfs.pdf. Ministry of Justice and Public Security. (2017). Integrasjon og tillit—langsiktige konsekvenser av høy innvandring. Norwegian Official Reports NOU 2017:2. Retrieved October 18, 2017, from https://www.regjeringen.no/contentas sets/c072f7f37da747539d2a0b0fef22957f/no/pdfs/nou201720170002000 dddpdfs.pdf. Olsen, E. D. H. (2012). Transnational Citizenship in the European Union: Past, Present and Future. London: Bloomsbury. Olsen, E. D. H. (2014). “Utenforskapets paradoks”: Mot et depolitisert statsborgerskap? In E. O. Eriksen & J. E. Fossum (Eds.), Det norske paradoks. Om Norges forhold til Den europeiske union. Oslo: Universitetsforlaget. Olsen, E. D. H. (2018). Welfare State Discourse and Citizenship Politics in Norway: From ‘Silent’ Policy to Steering Logic. In F. Engelstad, C. Holst, & G. Aakvaag (Eds.), Democratic State and Democratic Society. The Hague: Brill. Olsen, E. D. H. (2021). Norway’s Approach to Migration and Asylum as a NonEU State: Out, but Still In. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.),

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The EU Migration System of Governance - Justice on the Move (pp. 199–224). New York: Palgrave Macmillan. Sandnes, T. (Ed.). (2017). Innvandrere i Norge. Oslo: Statistisk sentralbyrå. Taulbee, J., Kelleher, A., & Grosvenor, P. C. (2014). Norway’s Peace Policy. Houndmills: Palgrave Macmillan. Tellmann, S. (2016). Experts in Public Policymaking: Influential, yet Constrained. Ph.D. thesis, Oslo and Akershus University College of Applied Sciences (HiOA). Thorsdalen, B. (2016). En demografisk beskrivelse av arbeidsinnvandrere fra EU/EØS og deres familier. Oslo: Statistisk sentralbyrå. Valenta, M., & Strabac, A. (2011). State-Assisted Integration, but not for all: Norwegian Welfare Services and Labour Migration From the New EU Member States- International Social Work, 54(5), 663–680. Verhoest, K. (2013). Agencification Processes and Agency Governance: Organizational Innovation at a Global Scale? In P. Valkama, S. J. Bailey, & A. V. Anttiroiko (Eds.), Organizational Innovation in Public Services. Governance and Public Management (pp. 49–71). London: Palgrave Macmillan. Walzer, M. (1983). Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books. Zotti, A. (2021a). The Immigration Policy of The United Kingdom: British Exceptionalism and the Renewed Quest for Control. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 57–88). New York: Palgrave Macmillan. Zotti, A. (2021b). Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension. In M. Ceccorulli, E. Fassi & S. Lucarelli (Eds.), The EU Migration System of Governance - Justice on the Move (pp. 225–258). New York: Palgrave Macmillan.

CHAPTER 9

Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension Antonio Zotti

Introduction The difficulties encountered by the European Union (EU) in dealing with the so-called migration or ‘refugee crisis’ of 2015 have to a large extent been ascribed to the unprecedented magnitude of the human flows and the political instability of the places where these human movements originated from and transited (Trauner 2016). However exceptional the conditions in which the crisis arose, observers have also singled out as an aggravating factor the EU’s problematic relationship with the notion and practice of leadership and its allegedly related inability to live up to its own standards of global justice (Van Esch 2017). Indeed, the lack of a political centre may appear as an inevitable deficiency: as a multilevel, pluralistic political system, the EU is arguably at

A. Zotti (B) Catholic University of the Sacred Heart, Milan, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_9

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variance with the hierarchical dimension usually associated with leadership. Yet, the conceptual contrast is much less conspicuous if leadership is thought of not so much in terms of command and control, but rather as a way to enable collective policy-making with a quantum of agency, vision and power (Müller and Van Esch 2019), or the ability to ‘help create and achieve […] goals’ that are shared by others (Nye 2010, x). Indeed, one can hardly fail to notice that EU institutions, (groups of) national governments and certain powerful leading figures have proved able to provide guidance for the Union’s political processes.1 Theoretical works have paid increasing attention to this question, especially since the ‘normal’ drivers of EU politics have been severely upset by the so-called polycrisis that has been beleaguering the Union at least since the outbreak of the global financial crisis (Zeitlin et al. 2019). In particular, Member States have come to be regarded as the best-suited actors to pull the integration process out of the its current predicament—and Germany, among them, as the ‘natural candidate’ to playing such a leading role. Yet the country’s (attempted) leadership has been harshly criticized, especially as far as the refugee crisis is concerned (Helms et al. 2019; Wood 2004). The German government largely failed to induce other Member States to react constructively to its autonomous decision to suspend the Dublin procedure in order to let in hundreds of thousands of asylum seekers, who after fleeing Syria’s civil war found themselves stranded at the borders of the Schengen Area waiting for permission—or just the opportunity—to enter. The restrictive measures that followed what came to be known as Politik der offenen Tür (‘open door policy’) are a testament to the failure of this attempt to guide the Union’s (re)action. As a result, Germany was largely deemed an ineffective leader, or, alternatively, a coercive power taking no heed of the interests or values of the rest of the Union (Bulmer and Paterson 2017). The question of Germany’s (expected) leadership of the EU in the migration crisis becomes even thornier when related to the conceptions of justice this book examines as possible ethical criteria for the Union’s conduct as an international actor (Eriksen 2016). The first is a Westphalian notion—justice as non-domination—according to which the moral integrity of each polity’s conduct ultimately depends on whether it prioritizes the interests and values of its own and other countries’ 1 See the 2017 special issue of the Journal of European Integration, 39(2) on political leadership in the EU.

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domestic communities; in this perspective, decision-makers may well take steps to advance the conditions of moving, entry and stay of migrants— possibly in a multilateral manner—but have the moral duty to do so without impinging on their own and other states’ sovereignty. The second is a cosmopolitan conception—justice as impartiality—premised on the unconditional ethical values of human rights as sanctioned by cogent universal (customary or statute) norms; accordingly, migrants are first of all entitled to be beneficiaries of policy measures and institutional arrangements designed to protect universal human rights. Finally, the conception of justice as mutual recognition acknowledges the importance of recognizing the active participation of subjects in governing the phenomena affecting them. According to this perspective, migrants—both as individuals and groups—cannot be mere spectators of the governance of migration; on the contrary, migrants as well as the population of the recipient countries have to be put in a position to be active agents of migrationrelated political processes, which have to take into account identities, needs, and expectations as they emerge from these actual people’ own accounts. Relatedly, authorities are to address not only blatant violations of human rights, but also iniquities deriving from structural biases and deep-rooted prejudices that may permeate well-intended policy measures and institutions. In assessing the conduct of all Member States in relation to these three justice claims, the question of whether and how Germany’s migration policy complies with them can hardly be examined without considering the expectations and fears associated with the country’s (so far largely unsuccessful) leading role within the Union—and the effects on the latter’s aspiration to operate as a global ethical power. Instead of simply dismissing these questions by drawing on the ‘realist critique’ that maintains that global justice can only be the by-product of an (unlikely) accidental alignment of national self-interests—one that only exists as long as it reinforces stability—this chapter sets out to assess the distinctive circumstances underlying Germany’s hesitant efforts to act as a leader on behalf of these justice claims (Williamson and Hicks 2012). In accounting for the failure, in the summer of 2015, to effectively address the migration crisis, and Germany’s role in this non-success, this chapter also examines the ongoing transformation of the EU Migration System of Governance (EUMSG) (Lucarelli 2021). In doing so, we try to understand whether this shift may also be conducive to the fulfillment of the expectations of Member States—Germany included—third

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states, and EU institutions—with regard to Germany’s ability (or lack thereof) to orient the EU’s identity and conduct as an international actor complying with and advancing global justice (Harnish 2011). To this end, the following section identifies the main trajectories of Germany’s immigration and asylum policy, accounting for the country’s shift from a restrictive to a selectively liberal approach towards voluntary and forced migrations.2 The third section examines the intergovernmentalization of the EUMSG and the allegedly leading role played in it by Germany. The final section examines Germany’s compliance with the above-mentioned justice claims, and whether and how the country’s position within a transforming EUMSG have helped create and behave according to the normative orientations of the EU as an international actor.

Germany’s Immigration Policy: Economic Interests, Unification of the National Community and Respect for International Law The premises of the asylum policy steps taken by the German government in 2015, allowing people escaping from the Syrian civil war—Syrians and other nationals—to enter the country, certainly pertain to the sphere of justice, but have also been largely influenced by principles and concerns of a different nature (Laubenthal 2019). Significantly, the notion of Willkommenskultur (‘welcoming culture’) was not originally used with reference to the movement of people escaping persecution, but rather labour migration (Green 2013). In fact, the notion first appeared in 2010 as part of the debate about the shortage of national manpower in Germany and the need to create a more attractive environment for highly-skilled foreign professionals and therefore for more relaxed entry parameters for immigrants—refugees included. The liberalizing measures eventually taken can be regarded as the ultimate result of a decadeslong process of incremental re-elaboration of the country’s national identity. One of the most striking aspects of this process has been the progressive departure from the traditional axiom that Germany was kein

2 For a thorough presentation of the concepts and rules underlying Germany’s immigration and asylum policy, see ‘Definitions and legislative frameworks of Germany’s migration policy’, see Antonio Zotti 2019.

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Einwanderungsland—‘not a country of immigration’—a principle officially adopted by the federal government in 1977, but already ingrained in the ethno-cultural conception of German nationhood. This was consistent with the original notion of the Federal Republic as an entity ancillary to—rather than (co)constitutive of—a specific heritage and civilization, and a ‘vicarious, incomplete nation-state’ due to the existence of two German states and the scattering of huge German diasporas in Eastern Europe and the Soviet Union (Joppke 1999, 63). Although no European country conceives of itself as a ‘nation of immigrants’, at least until the 1990s Germany stood out for elevating the no-immigration maxim to a principle of public policy and national self-definition. This contrasted, for example, with the UK, which while implementing policies that were at least as restrictive as Gemany’s, hardly ever officially used this feature to identify itself. In fact, since shortly after the end of World War II the Federal Republic of Germany has been one of the world’s main immigrant-receiving countries, but discarding the noimmigration axiom as mere ‘counterfactual ideology’ would obscure its normative quality. As a basis for national self-understanding, the ‘not a country of immigration’ claim was not contradicted, but rather premised on Germany’s condition as the destination of massive human movements, as it reconciled the country’s need for foreign workers with its soughtafter identity as an ethno-culturally homogeneous ‘nation-state’, as well as its (self-)image as an ‘open republic’, welcoming and compliant with the values of the international order in force (Faist 1994). This reconciliation effort was essential during the 1950s and 1960s, when post-conflict reconstruction and the economic boom made the import of foreign labour a primary issue. To this end, Germany came up with its famous ‘guestworker model’ (Castles 2006): an exclusionist immigration policy based on bilateral recruitment agreements, designed to fill in low-qualification vacancies for prearranged time spans, while retaining control of the size and make-up of the flows. The model was embodied in a series of recruitment agreements (Anwerbeabkommen) with a number of Mediterranean countries: Italy in 1955, followed by Spain and Greece in 1960, Turkey in 1961, Portugal in 1964, Tunisia and Morocco in 1965, and finishing with Yugoslavia in 1968. In line with the strictly instrumental logic underlying this model, the 1965 Foreign Law regulating the presence of foreign nationals in the country replaced the subjective ‘worthiness’ of the foreigner—the principle underlying the 1938 Alien Police Ordinance—with national interest, which from that moment on served

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as the ‘objective criterion’ for entry and stay—while also providing the executive with ample discretion and the foreign workers with virtually no rights. As a matter of fact, the declared primacy of national (economic) interests and cultural homogeneity did not entail the actual systematic restriction of foreigners’ rights, mainly thanks to the guarantees provided by the Federal Republic—in particular through the Constitutional Court, committed to taming the state’s power and subordinating it to the rights of individuals, the most fundamental of which were to be granted without respect to nationality.3 However, even with the case law-created status of permanentresident—which entitled immigrants to rights essentially equal to regular citizens’, and the emergence of parties and civil society representing settled foreigners—the no-immigration stance continued to serve as a powerful rhetoric instrument in the political arena. Moreover, this restrictive model fulfilled the expectations of decision-makers and public opinion that temporary workers would go (or be sent) back home once Germany had settled its demographic imbalances. The concept of guestworkers as a commodity to be disposed of when no longer necessary was crucial to achieving the political consensus necessary to continue the policy and to securing the difficult sealing of recruitment agreements that entailed the cohabitation with nationalities perceived as particularly incompatible with the German values and way of life—especially the Turkish, who would come to form an ethnic community of a staggering 1.5 million people (Ehrkamp and Leitner 2003). With the economic slowdown of the early 1970s, more favourable conditions emerged for a much more consistent application of the no-immigration axiom. Migrant recruitment through international agreements was suspended in 1973 (the so-called Anwerbestopp), but the integration of resident guestworkers and family reunification became the objects of a heated public debate. Nevertheless, legal and moral constraints prevented policy-makers from taking effective measures to repatriate permanently-settled guestworkers; this included the incremental introduction of family reunification rules and rights. Between 1973 and

3 The strict implementation, in the early post-World War II period, of the newly-founded international regime of human rights protection also reflected the Federal Republic of Germany’s status as a quasi-sovereign state, which at the same time entailed (temporary and partial) ‘tutelage’ by the western international system, and an avant-garde position within the liberal international order. See Lucarelli (2020).

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1987, a string of rulings by the Constitutional Court helped dismantle the guestworker model by fully acknowledging the rights of settled foreigners. The state would remain free to deny first entry and settlement to new immigrants, but once they had been let in and had stayed for a substantial amount of time the discretion to deport or deny them residence permit renewals would become very narrow. Even so, it was only when the Foreign Law was passed in 1990 that resident foreigners’ rights started to be protected by primary law instead of administrative norms or the federal government’s recommendations to the Länder—which held vast powers and a high degree of discretion in the immigration policy area. Moreover, the integration of settled foreign workers was not approached as a political issue, but rather as an administrative task to be left to the authorities implementing welfare policies, as well as to civil society organizations (Bade 2017). By the late 1980s, an unprecedentedly broad coalition of political parties, charity organizations, unions and churches and the more freemarket oriented sectors of the Christian Democratic Union (the leader of the coalition in power) mobilized against the restrictive, nationalist draft law under discussion at the time. Eventually, the new Foreign Law, which came into effect in 1991, pragmatically acknowledged that foreigners had already become, and were widely perceived as, part of the national community. Germany’s immigration policy, resting on a rationale that had already shifted from deterrence to pragmatic acceptance, eventually shifted into full favourable reception, also thanks to the Social Democratic Party/Green coalition government that came into office in 1998. At this point, migrants’ integration became the key policy issue, one that ranked very high also among the priorities of the conservative government that took over in 2005. A new immigration law came into force in 2005 which defined the integration of migrants as a national goal and established the Office for Migration and Refugees, and in the following years several Länder created ministries for integration. For the first time since 1973, official channels were created for the entry of permanent foreign workers—especially highlyskilled ones—while entry requirements (e.g. priority checks, salary and investment thresholds) were lowered and quotas raised. Moreover, as a way to cope with the demographic crisis looming over the country, and to build on the previous red-green government’s citizenship and migration reforms, the three subsequent Merkel-led cabinets completed Germany’s

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transformation into a bona fide immigration country: a National Integration Plan was launched—stressing such aspects as language acquisition, education and vocational training, and labour market mobility. With the 2012 transposition of the EU’s Blue Card Directive (an EU-wide work permit) into German law and the Bundestag ’s approval of a process for recognizing occupational qualifications attained abroad, the ‘welcoming approach’ could be deemed to have fully permeated labour immigration policy.4 The minimum income required for foreign workers to be employed in Germany was reduced to levels roughly equal to the national average income, a concrete job offer was no longer considered a condition for entering the country and the emphasis on skills was dropped from the selection criteria. Support for the integration of immigrants and their descendants was established as a governmental task, although the incoming population was still to be managed with a view to national economic and labour market interests. Asylum Policy and the Construction of Germany’s Self As the Federal Republic was conceived of as a provisional state, instrumental to the eventual creation of a polity including the entire German people, Article 16 of the Basic Law provided a subjective right for political refugees to be granted asylum—instead of the much more common objective right of states to receive asylum seekers, in more or less explicit contempt of the irregular conduct of the persecuting country (Schuster 2003; Heuser 2008). The actual rationale was to grant refuge in the newly-formed state to Aussiedler and Spätausseidler—‘repatriates’ or ‘ethnic Germans’, i.e., respectively, one-time German citizens who had remained in former German territories after 1945, and those who moved to Germany from communist countries, and their family members—and Heimatvertriebene—citizens of the Federal Republic’s predecessor states expelled after World War II from territories annexed by Poland and the

4 Respectively, COUNCIL DIRECTIVE 2009/50/EC of 25 May 2009 on the condi-

tions of entry and residence of third-country nationals for the purposes of highly qualified employment, and COUNCIL DIRECTIVE 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

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Soviet Union. In fact, the general scope of the article granted virtually every non-national claiming to be politically persecuted the right of entry—instead of the mere right not to be extradited or deported—and full protection provided directly by the Constitution, irrespective of other laws and regulations (Foster and Klaaren 2012). This constitution-based refugee status also served as a sort of act of atonement for the country’s Nazi past, with its racial, extra-legal definition of citizenship (Palmowski 2008). A generous asylum policy—one that limited, at least in principle, the Federal Republic’s sovereign right to deny foreigners access to its territory, even those fleeing from persecution—had a twofold effect. On the one hand, it signalled that the new state was committed to repudiating belonging to a mythical, inherently superior German Volk (people) as a foundation of the German political community and to abide by the principles of the post-World War II international order—e.g. openness and the primacy of human rights. On the other hand, it enabled the Federal Republic to pursue its goal of eventually reuniting the dispersed German people into the bosom of a single political entity based on a cultural (instead of ethnic) conception of citizenship—and to be a thorn in the side of the German Democratic Republic and the east Europe socialist countries. As a result, Germany could present itself a ‘fitting’, non-threatening country—one that has let in an impressive number of foreigners (including asylum seekers) since the 1950s—while also maintaining the principle of jus sanguinis as the decisive criterion for the legal acquisition of citizenship, together with comparatively restrictive naturalization laws.5 According to conservative estimates, the asylum system allowed some 3.9 million ethnic Germans from Eastern Europe and the Soviet Union to move to Germany between 1950 and 1998 (Dietz 1999). The generous notion of asylum underlying Germany’s policy remained formally unquestioned until at least the mid-1980s, when the political and social consensus it had been resting on started to waver. The historical circumstances that had brought this favourable general opinion into

5 Palmowski (2008) dismisses the traditional idea that Germany’s jus sanguinis-based citizenship policy and laws, even after the end of the Third Reich, have been intrinsically related to ethnicity, as a reflection of a distinctive political and cultural tradition. The author points out that both in the nineteenth century and after World War II German conceptions of citizenships were never too far from those of other states in Europe.

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being were becoming remote from the concerns of the present population and the policy-makers; moreover, this radical change in the German public discourse corresponded to an equally dramatic shift in the makeup of the new waves of forced immigrants. Those who applied for asylum in that period (little short of 100,000 in 1980) were less and less dissidents from the Soviet-bloc, but rather victims of armed conflict and economic deprivation in the Third World (Mushaben 2017). In fact, the tension between principles and reality had already emerged in the previous decade. As early as 1973, when foreign recruitment through international agreements was brought to a halt, a number of legal procedures and social deterrence measures were put in place to neutralize the constitutional asylum right, which had become the only legal avenue (except for family reunification) for entry. In the following years, increasingly restrictive measures were taken—e.g. limiting forced immigrants’ labour market access, residence rights, freedom of movement and access to health care and welfare benefits (Thränhardt 2015). Moreover, no measures for the integration of asylum seekers were put in place. However, contradictory signs from Bund (federal) and Land (state) governments—such as automatically granting work permits to Turkish asylum seekers—obstructed the attempt to reduce the inflow of forced immigrants. At the beginning of the 1990s, asylum became once again a highlypoliticized priority, especially as a consequence of the arrival of up to three million new forced immigrants between 1989 and 1992, mainly from civil war-ridden southeast Europe countries. A new wave of ethnic Germans from the USSR, Poland, Romania and citizens of the Democratic Republic (Übersiedler) also moved to the Federal Republic. Competition for the reception system’s relatively scarce resources generated a potentially explosive situation. Conservative parties revived the 1980s Scheinasylanten (‘bogus asylum seeker’) stereotype, while Social Democrats and Greens addressed the problem by arguing for a major overhaul of Article 16, regarded as an anachronistic relic of Germany’s völkisch nationhood, and for the introduction of an immigration system based on quotas, in which ethnic Germans would be considered as any another immigrant group. As a result, asylum policy was conflated with the general immigration policy goal of cutting back the number of arrivals. This can be regarded as a pragmatic response to growing social frustration with a massive—and potentially permanent—asylum-flow, upsetting, among others, the balance between the central government and Länder-level

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authorities in charge of the day-to-day management of the issue, and providing arguments to radical groups opposing asylum-rights organizations. The final push for a ‘normalizing’ constitutional change that would ease at least one of the critical components of immigration flow—the forced one—came paradoxically from the EU, which had been requiring Member States to harmonize their asylum policies. This was a condition for the implementation of freedom of movement within the Schengen Area, designed to guarantee fair opportunities and equal treatment to refugees while also preventing ‘asylum shopping’ across the Union. In a nutshell, harmonization—which would eventually result in the 1990 Dublin Regulation—offered the opportunity to pass the buck to the EU. The government initially made the ‘adjustment’ of Article 16 of the Basic Law conditional upon the adoption of ‘humane’ asylum standards by the EU; whether this was a face-saving demand or not, Germany’s neighbours showed no intention of accommodating its demands for substantive burden-sharing and supranational coordination, nor of complying with the demanded ‘humaneness’ standards. Article 16 continued to clash with the Dublin Regulation: while the latter stipulates that the first Schengen state where asylum seekers submit their application has to process it vicariously for the whole area, the former entailed that asylum seekers rejected in other Schengen states would get a second chance in Germany. The prospect of becoming the Schengen ‘dumpster’ for rejected applicants made demands to amend the Basic Law more pressing. In 1993, negotiations between the ruling majority and the opposition led to the so-called asylum-compromise. Article 16 was not cancelled, but new proviso clauses were inserted. As a consequence, the Federal Republic became able for the first time to reject apparently fraudulent asylum seekers at the borders (Joppke 1999, 93). Besides limiting entry into the national territory, the amendments restricted de jure access to the constitutional asylum process and limited de facto the chances of being accepted as a protected person based on the 1951 Geneva Convention. Asylum seekers arriving through ‘safe third states’ were to be automatically excluded from the process, denied entry or subjected to immediate deportation. Secondly, asylum seekers from ‘safe countries of origin’ were put through an accelerated recognition procedure (generally ending in rejection of their claims, pronounced ‘obviously unfounded’). In essence, the new Article 16 provided that only asylum seekers arriving by air or sea from countries of certified persecution with valid papers and without

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invalidating third-country stops would be entitled to claim the constitutional right of asylum. Eventually, Germany’s exceptionally permissive asylum system became one of the most restrictive in the Union. Moreover, after the 2004 enlargement, the terms of the blame game with the rest of the EU were inverted: save for the significant share of asylum seekers reaching the country by air, after the enlargement Germany would enjoy the benefits of being a ‘EU-locked country’, surrounded by Schengen states responsible for the applications of humanitarian immigrants crossing the area’s external borders by land. Although asylum seekers continued to arrive, in 1994 numbers were already 70% lower than two years before, and they would keep decreasing over the following two decades. Recognition rates became extremely low as a result of the restricted legitimate grounds for asylum. However, in 2005 the system already started to backtrack to a more liberal path, with the new Asylum Law including persecution by non-state actors and gender-based maltreatment as valid grounds for protection. More substantial changes took place in 2013, when the grand coalition government then in office set out to improve refugees’ integration and access to the labour market. At the same time, the measures taken were coupled with several restrictions that tacitly discriminated between wanted and unwanted asylum seekers and refugees. For instance, Macedonia, Serbia and Bosnia–Herzegovina and then Albania, Kosovo and Montenegro were added to the list of ‘safe countries of origin’, making it impossible for their citizens to ask for protection. Residence rules were tightened too: ‘legitimate’ asylum seekers were expected to live in reception centres for six months, while applicants from safe countries of origin had to stay in the same centres for an indefinite amount of time. Moreover, in 2015, stricter criteria were introduced for detaining asylum seekers before their deportation. Asylum seekers were also excluded from getting cash benefit payments, an accelerated deportation process was put in place, and family reunification for beneficiaries of subsidiary protection was suspended. On the other hand, the 2015 ‘Law for the Redefinition of the Residence Law and Termination of Stay’, while setting even stricter limits for the entry and stay of asylum seekers, also liberalized their access to the labour market—e.g. by shortening the waiting period to became legally entitled to work. Permissive and restrictive measures could coexist in the light of the utilitarian rationale underlying the policy, aimed at addressing labour shortages in relevant sectors of the national economy. In order to do

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so, steps were taken to select already highly-skilled and/or experienced asylum seekers, and to orient young asylum applicants towards vocational training (Thränhardt 2015). Since 2013, the guiding principles of asylum policy have shifted even more clearly from deterrence to selection of the best suited to meet Germany’s economic and social demands—and this has undermined the notion of humanitarian immigration as a mere burden on national welfare or a way to dodge restrictions. The utilitarian logic and the ‘normalization’ of asylum is also evidenced by the government’s assumption that the best way to integrate protected people consists in facilitating their access to the labour market, as evidenced by the integration law that came into force in 2016, which abolished many of the previous restrictive and deterring instruments of asylum policy. Still, the commitment to ‘qualified liberalisation’ was not just the product of this utilitarian rationale. At least since 2005, when Angela Merkel’s government took office, and especially after the introduction of the aforementioned proactive National Integration Plan in 2007, Germany’s ‘welcoming culture’ started to change from a mere instrument of labour migration policy into an ethically-charged scheme within which the CDU-led governments—and the chancellor in particular—tried to frame the country’s immigration and asylum policy (Mushaben 2017). The welcoming culture informed not only Germany’s policy-making, but also the country’s general discourse on immigration, including the public debate on the massive flow of asylum seekers fleeing from the civil war in Syria, who since at least 2013 had been streaming towards Europe. By mid-2015 Germany had reached its highest level of immigration in twenty years, yet, at least at first, the emergency originating in the Middle East accelerated the progressive liberalization that the national migration system had hitherto undergone. On 25 August 2015, the government— under Angela Merkel’s decisive personal guidance in the matter (Helms et al. 2019)—suspended the Dublin procedure requirement, allowing those who had not filed applications in their first EU state of arrival to submit them in Germany. The ‘wir schaffen das!’ (‘we can do this!’) uttered by the Chancellor during her summer press conference ushered in the country’s ‘open door policy’, and came to encapsulate the government’s and civil society’s ‘welcoming’ approach towards the crisis (Funk 2016). With the Asylum Package (I), the federal government doubled its contribution to state and communal governments (in charge of accommodation, meals and medical costs for asylum seekers), conditions for the employment of asylum seekers were made less strict and the number

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of volunteer centres across the country increased. Clearly, things were not all rosy: for instance, the package replaced cash with in-kind benefits at the receiving centres and new Balkan countries were deemed ‘safe states’, subjecting their citizens to a dramatic increase in the rejection rate of their asylum demands. Yet despite the initially widespread citizens’ engagement with the refugees, the welcoming approach also started to trigger antagonistic reactions, evidenced by the political ultimatums and populist rhetoric of Horst Seehofer—the prominent head of the Bavarian government and leader of the Christian Social Union, the CDU’s sister party—as well as the electoral gains of Alternative für Deutschland and the Pegida protests. In the wake of this changing mood towards immigrants, the Bundestag passed the Asylum Package (II) in January 2016, which effectively rolled back a number of the ‘welcoming measures’ previously adopted, imposing restrictions on freedom of movement, reductions of benefits for individuals not submitting to ‘voluntary’ deportation and excluding new forms of protection for women and unaccompanied minors (Mushaben 2017). Even when these more restrictive rules were laid down, and in line with the rationale underlying the 2019 Skilled Immigration Act,6 asylum seekers and refugees were thought of and treated simultaneously as resources for the German labour market and contributors to the diversity (Multikulti) and dynamism of German society. That being so, the government’s response to the so-called migrants crisis of 2015–2016 may be regarded as something more than a sequence of reckless personal decisions by a Chancellor overconfident of her moral authority, followed by a rushed turnabout. In fact, the course of events reflects the ambivalent and pragmatic normative rationale underlying Germany’s migration and asylum policies. Displaced people due to the Syrian war may well have been let in also—if not chiefly—owing to their economic value as skilled workforce (Maroufi 2017). At the same time, the labour market was framed by decision-makers not only as the locus of self-seeking demands, but also as an effective, practical and fair instrument to integrate asylum seekers and refugees. The tenability of this normative argument can certainly be questioned, especially in the light of the contradictions and tensions affecting 6 Bundesamt für Migration und Flüchtinge, Fachkräfteeinwanderungsgesetz. Available at https://www.bamf.de/SharedDocs/Meldungen/DE/2020/20200301-am-fachkraeftee inwanderungsgesetz.html.

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the regulation logic of Germany’s labour market and migration policy (Altenried et al. 2018). Yet, whatever the limits of the actual response to the ‘crisis’, the latter can hardly be understood as an impromptu, opportunistic decision aimed at obtaining cheap qualified labour, as it drew upon the singular combination of utilitarianism and humanitarianism on which the country’s immigration and integration policies had traditionally been premised. This, however, does not imply that the foundations of German asylum policy have ever proved particularly consistent or reliable in ethical terms, as evidenced by the strong criticism triggered by the response to the 2015 crisis at home and among other Member States, which was one of the factors that forced the government to fall back on the restrictive approach prevalent across the Union—together with the plunge in domestic support for the government’s asylum and immigration policy, owing to growing concerns among the public and policy-makers about the country’s ability to cope with an inflow of migrants of such scope and duration (Reiners and Tekin 2020).

Germany’s Atypical Leadership of the EUMSG in ‘Crisis Mode’: The EU-Turkey Statement A major determinant of Germany’s asylum policy, as well as the evolution of its role within the EU, was the effective disruption of the Dublin system triggered by the 2015 migration crisis. Apart from the difficulties in managing the massive inflow, the system and the functional and ideal premises of the Schengen area were put under increasing pressure by the disproportionate burden that these flows put on the frontier Member States compared to the countries not directly hit by the brunt of the migratory wave. In the end, EU frontier Members and the third countries located along the immigration routes involved in the system of governance could not but ignore—more or less eagerly so—their responsibility for processing asylum demands on behalf of the whole area. They either assisted the migrants in their passage to their exit point or at least looked the other way while they tried to make their way to western Europe—and to Germany in particular, which by 2015 had become the EU Member State with the largest number of applications (though not in proportion

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to its population).7 While over the previous few years Central and Eastern Mediterranean immigration routes had garnered some prior media attention due to the sheer number of (attempted) crossings and fatalities, by the summer of 2015, European publics had become at least equally appalled—and frightened—by the clogging of the Western Balkan Route, along which Middle Eastern migrants attempted to cross the southern common borders with Greece and Bulgaria before heading north and trying to exit the region largely at the northern common borders of Hungary, Croatia or Romania with Serbia (Cichocki and Jabkowski 2019; Frontex 2020). The situation gave rise to a series of fault-lines, one of which saw Germany—committed to holding the liberal line—at cross purposes with the Visegrad countries (i.e. Hungary, the Czech Republic, Poland and Slovakia) and their increasingly illiberal policies. Indeed, as mentioned in the second section, Germany could afford its liberal stance not simply out of conviction, but also because the Dublin system isolated the country from direct forced migration. The crisis of the Dublin System became evident when the number of forced and unforced migrants entering the Schengen area despite the Dublin Regulation started to rise dramatically, as peripheral Schengen countries were no longer able/willing to deal with them. Significantly, Hungary’s Prime Minister Viktor Orbán claimed that the migrant crisis was ‘a German problem’, since the Federal Republic was where those arriving in the EU ‘would like to go’ (BBC 2015). Accordingly, after briefly abandoning efforts to register migrants—allowing large numbers to board trains to Vienna and southern Germany—Orbán could present his decision to erect a border barrier on Hungary’s borders with Serbia and Croatia (non-Schengen countries) as the only effective way to protect the Schengen area, seeing that the EU was ‘too slow to act’. When the number of asylum seekers making it across the borders into Germany became much higher than the amount of applications that could be handled, and the open door policy was brought to an end as an effect of domestic and foreign criticism, the German government quickly 7 The situation did not significantly change when the European Agenda on Migration of 2015 developed the so-called hotspot approach, which allowed the creation of a number of centres, located on EU external borders, where the registration, identification, fingerprinting and debriefing of asylum seekers takes place. If the asylum seekers refuse to be identified, they are transferred in the CIE in order to be identified and returned to their country of origin. Greece and Italy are the EU Member States where the hotspot approach has been implemented during the last years (Open Migration 2020).

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focussed its efforts on the plan that the EU had came up with in order to overcome—yet not break—the deadlock on a coherent response to the crisis. The solution was to be found in an atypical cooperation with the most recalcitrant of the Union’s candidates: Turkey would be engaged as a ‘key strategic partner’ with which ‘to confront and surmount the existing challenges in a concrete manner (European Commission 2015, 1; emphasis added), although the difficulties in executing internal measures of the agreement with Turkey would soon appeared in stark contrast with the ease with which the relationship had been rebranded. In opting for this policy strategy, the EU and Germany fall back to two traditional components of their respective immigration and asylum policies: externalization—i.e. the process through which non-EU actors (are made to) adhere to norms and practices similar to those in effect in the EU, or to behave in a way that generally satisfies or conforms to its policies (Lavenex 2004; Boswell 2003)—and the category of ‘safe third country’—a concept based on the principle that forced immigrants should seek asylum in the first safe country they are able to reach, but in practice traditionally aimed in national and EU law to curb humanitarian migration.8 Apart from a deliberate strategy, externalization and the safe third country category were also a ‘go to solution’ in front of the lack of agreement and solidarity among the actors involved in the EU decision-making process regarding the possible internal measures to take in response to the crisis. This is evidenced by the insurmountable difficulties that emerged in

8 The ‘safe third country’ concept is based on a strict and heavily criticized interpretation of Art. 31(1) of the Geneva Refugee Convention, which excludes asylum seekers from penalization for entering the territory of a state unlawfully when coming ›directly‹ from a territory where they face persecution (Roman/Baird/Radcliffe 2016). The safety of the country to which a refugee is returned is necessary if it is to fulfill the protection standards of the Refugee Convention and the European Convention on Human Rights (ECHR). This principle has been transposed into EU law in the EU Asylum Procedures Directive, which puts common procedures for EU Member States in place for granting and withdrawing international protection. Art. 33(2)(c) stipulates that a claim for international protection does not need to be considered on its merits and may be considered inadmissible if a country that is not a Member State (third country) is considered to be a safe third country (Gkliati 2017). Germany’s reaction to the massive surge in human movements in the 2010s also contained a strong external dimension. In order to curtail asylum demands, lawmakers declared Balkan countries ‘safe states’ and made an unsuccessful attempt to do the same with Morocco, Algeria and Tunisia.

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the implementation of EU flagship initiatives such as the aforementioned emergency relocation scheme (Scipioni 2018). As a result of a dense series of multi- and bi-lateral meetings between EU’s, Member States’ and Turkey’s officials, in October 2015, the Commission negotiated and jointly adopted with the Turkish authorities an action plan on how to address the refugee crisis; the plan was activated the following month through the integration of its measures into a more comprehensive framework (Council of the EU 2015).9 When the measures taken proved to be ineffective in cutting down the number of refugees arriving on Greek islands, in March 2016 the EU and Turkey adopted an additional comprehensive package of measures; the ‘EU-Turkey statement on migration’. The so-called refugee deal was by and large (pre)negotiated in an unofficial meeting attended by Angela Merkel, Mark Rutte, Prime Minister of the Netherlands and then-holder of the Presidency of the Council, and the Turkish Prime Minister Ahmet Davuto˘glu on the eve of the EU-Turkey summit held on 7 March 2016. The results of the negotiation meeting were presented to the European Council by President Donald Tusk on 18 March 2016, and the deal came into effect two days later. Key elements of the ‘statement’ were the readmission agreement—according to which all third-country nationals crossing irregularly from Turkey to the Greek islands after March 2016 who are not in need of international protection would be returned to Turkey on the premise that the latter is safe for them—and the resettlement of one Syrian refugee from Turkey to the EU for each Syrian being returned from Greece to Turkey. The aim of this ‘one in, one out policy’ was the interdiction of irregular border crossings into the EU via the sea route between Turkey and Greece—therefore draining off human flows across the Balkan region towards Eastern Europe. The deal also prescribed that Turkey enhance necessary measures to prevent new sea or land routes for irregular migration through Turkey; provided an additional 3 billion euros for the Refugee Facility for Turkey, and called for the improvement of humanitarian conditions inside Syria. Additionally,

9 The EU and Turkey agreed to re-energize the accession procedure by opening addi-

tional negotiation chapters and accelerating the process of visa liberalization (aiming to reach conclusion by October 2016). The agreement also included the establishment of the (initially 3 billion euro) EU-funded Refugee Facility for Turkey, preparations for upgrading the Customs Union and engagement in high-level dialogues at ministerial and governmental level in various strategic policy areas.

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the EU and Turkey reaffirmed the acceleration of the visa liberalization procedure and envisaged opening chapter 33 of Turkey’s EU accession negotiations, focusing on financial and budgetary provisions (Council of the EU 2016). Given that most of the migrants arriving onto Greek territory through Turkey come from Syria and other refugee-producing countries, it was quite evident that the EU-Turkey deal would not be able to significantly reduce arrivals—which makes it all the more reasonable to think that the parties were willing from the beginning to operate a blanket application of the safe third country principle, taking the (calculated) risk of extending the rule to any third-country national arriving from Turkey (Peers and Roman 2016). Throughout the negotiation and implementation process, Germany’s leading role became more conspicuous as the German and Turkish governments upgraded their bilateral political frameworks to discuss issues of EU-wide concern. The German-Turkish Strategic Dialogue Mechanism was elevated to the level of heads of state or government, with the first German-Turkish intergovernmental consultations taking place already in January 2016. Given the historically developed interconnectedness with Turkey, it comes as no surprise that Germany was ready to use its structural power (i.e. population size, economic strength and political stability) and its great potential to influence the agenda-setting and the decision-making of the EU to strike a deal with a country positioned on a crucial migration route and prepared to tackle human flows with little misgivings (Matthijs 2016). If that is true, the EU-Turkey statement is not just the expression of an alleged hegemonic takeover of the Union (as implied in expressions such as ‘Merkel’s agreement’). The statement did mark an outstanding point in the usually low-key foreign policy of the Federal Republic, but it can be more accurately understood as an institutional solution that is quite consistent with the ‘unorthodox’ institutional arrangements and procedures that the EU has become familiar with as a result of the ‘polycrisis’. Although some Member States have deliberately interfered with the workings of Justice and Home Affairs policies, this ‘levelling’ process can hardly be regarded as the EUMSG’s breakdown (see Scholten and Pennix 2016). Member States—Germany in particular—have pushed the EUMSG into an ‘emergency mode’ that reduced the autonomy of

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the supranational level of governance, at the expense of communitarized policy-making methods. Significantly, EU institutions also partook in the remodelling, forcing otherwise unrelated policy components into asymmetric bargains and allowing Member States (while also influencing them in doing so) to reconstitute the EU’s authority with more sustainable patterns of decision-making and a more horizontal governance arrangement.10 Dealing with the migration issue through externalization has implied an awkward rapprochement with Turkey despite the sorry state of its accession process and the country’s political divergence with the EU in a number of policy areas. The rekindled relationship has been framed as the inevitable result of the humanitarian catastrophe sparked off by the scurry of overloaded boats trying to cross the few sea miles between Turkey and Greece in miserable—and frequently fatal—conditions and the disproportionate and overwhelming impact of the flows on Greece and Italy due to the structural failures of the Dublin Regulation. The urgency of coming up with an instrument able to ‘handle the emergency’ seemingly offset questions of coherence with the fundamental principles and values informing EU policies (Baldwin-Edwards et al. 2019). This is evidenced by the tension between the most prominent component of the statement—the ‘one in, one out’ policy—and the emphasis put by the Union on the protection of human rights and personal dignity, and the selfassigned role as ‘normative power’.11 The ‘crisis-management-oriented’ nature of the statement is also reflected in its undetermined legal status; the document defies not only conventional international law—which the Union declares to uphold—but also the very rules, institutional principles and practices that regulate the EU’s policy-making. Significantly, the EU’s 10 Piattoni (2009) calls this alternative regulatory strategy ‘blurring’: distributing risks and responsibilities among socio-spatial levels—an approach that interlinks peripheral levels—especially governments of Member States, non- and quasi-Member States (i.e. EU candidate states, closely associated and neighbouring states) because ‘the centre’ (i.e. the EU level of governance) can no longer sustain the more ‘vertical’ structure of the system of governance. 11 The EU allotted 6 billion euros to help Turkey provide temporary protection for Syrians. The non-agreement also prescribed that Turkey enhance measures to prevent the opening and use of new sea or land routes for irregular migration, provided an additional 3 billion euros towards the Refugee Facility for Turkey and called for the improvement of humanitarian conditions inside Syria; on the other hand, the acceleration of the visa liberalization procedure was confirmed and the re-opening of accession negotiations envisaged.

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Court of Justice defined the document, drawn up ‘at the margins’ of the European Council’s meeting held in March 2016, as a ‘non-EU agreement’ between Member States and Turkey, and has admitted it lacks the jurisdiction to review its legitimacy (see Ceccorulli 2021a). Hence, with the EU-Turkey statement, Member States have ‘unhooked’ themselves from the constraints of EU migration and asylum policy. The shift of the EUMSG’s centre of gravity towards the intergovernmental level is strictly correlated with the redefinition of the traditional divide between the external and internal dimensions of migration policies—with varying results in terms of coherence and good governance (Wunderlich 2012)—and between Member States and non-Member States, with the inclusion in the policy-making of quasi-Member States, and the engagement of home- and transit-countries encouraged to cooperate on irregular migration, smuggling, trafficking and return through the ‘leverage’ of non-migration policies (e.g. security and economic cooperation)—as in the case of the offer to the Turkish government of a visa liberalization dialogue and the relaunch of the accession process. Hence, if we regard them as a sequence of attempts to cope with the crisis of the Dublin system through a (tentative) exercise of leadership, Germany’s moves—i.e. Merkel’s suspension of the application of the Dublin procedure, her quick reversal of policy when the open door policy turned out to be unsustainable and Germany’s leading role in the negotiation of the agreement between the EU and Turkey to stem migratory flows along the Eastern Mediterranean and the Western Balkan routes— are much more consistent with each other than it would appear at a first glance. At the same time, this attempt at ‘playing leader’ confirmed Germany’s typical reluctance to fill in the role: while Germany did eventually shape the EU’s internal response to the migration crisis as a whole through the EU-Turkey statement (Reiners and Tekin 2020), it did so by scaling down its ambitions to act as an ‘ethical leader’ of the Union, stepping from a notion of justice as impartiality to one leaning more to the non-domination side. The EU-Turkey statement testifies to Germany’s bargaining power and political clout. However, the country’s role as a largely informal representative of the rest of the EU has also generated concerns in other Member States, worried about being chain-ganged into initiatives that conflict with, or are irrelevant to, their foreign and/or migration policy agendas—which adds to the reluctance of many actors to admit Germany’s preponderance.

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Observers as well as EU and foreign policy-makers have long operated under the assumption of a difference between ‘core’ Member States (France and Germany, and formerly Britain) and peripheral ones (Smith 2003). What distinguishes core Member States is not (just) their capabilities, but the fact that their calculation of national versus European interests and values is coupled with a parallel reckoning of their goals as ‘Europeans’ vis-à-vis the rest of the world. As a core state, Germany’s preferences and actions necessarily affect the basic circumstances in which the peripheral states and the entire EU exist and operate. That being so, German leadership in the migration policy area can be inferred not only from the relational aspects of the EU-Turkey Statement—e.g. Germany’s bargaining leverage with Turkey and the latter’s latitude in the treatment of transiting and returned asylum seekers. In fact, this alleged leadership is connected to the Federal Republic’s nested-ness in the EU political system (Banchoff 1999), which has enabled it to play a pivotal role in the experimental (re)shaping of the legal and policy frameworks underlying the non-agreement (Zoeteweij-Turhan and Turhan 2017). The leading role entrusted to Germany in negotiating the nonagreement is consistent with the EUMSG’s partly re-nationalized modality, which does not entail the unqualified acknowledgement of a position of primacy, as leadership is strictly conditional on finding a way to cope with the crisis. Apart from its unique structural inter-linkage with Turkey (e.g. trade relations, the Turkish diaspora), Germany’s leading role was also facilitated by the latter’s partial ‘misconception’ of the division of competences within the EU: Turkish negotiators and decision-makers apparently understood that Germany was the political representative of the Union, while continuing to communicate with the European Commission with regard to technical issues only (Reiners and Tekin 2020; Turhan 2017). Germany’s unique embeddedness in the EU political and institutional system may be regarded as a primary factor in the success of the EUMSG’s blurring strategy. The incorporation of the EU’s interests and values within the country’s policy agenda is evidenced by the German government’s determination to prevent the disintegration of the Schengen area, construed as a serious existential threat to both the EU and the Federal Republic. With the crisis, albeit within a ‘horizontal’ system of governance—and therefore depending even more on other Member States’ consensus—Germany was enabled/prompted to

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play leader also as a (core) Member State, and not only ‘from within’ the Union’s traditional inner workings.

Normative Implications of Germany’s Response to the Migration Crisis and Its Impact on the EU’s International Actorness Since the end of World War II, Germany’s self-representation on the international stage has been that of a distinctly non-threatening, highly reliable actor. Yet the decision of August 2015 to unilaterally suspend the Dublin Regulation—the kernel of the so-called ‘open door policy’—was regarded by some Member States as an encroachment on their sovereign right to manage migration as they saw appropriate. In particular, the governments of the four Member States of the Visegrad Group reacted to their exposure to massive migration flows from the Balkan route promoting ‘flexible/effective solidarity’ as an alternative way to tackle the issue (Visegrad 2016). This strategy hinges on the Member States’ voluntary commitment rather than their participation in compulsory mechanisms, which makes it more compatible with the emphasis they put on protecting their countries’ sovereignty and cultural identity (Zachovà et al. 2018). While reiterating the importance of preserving the Schengen area by enhancing control of the Union’s external borders, so that (their) citizens may continue to benefit from it, the four Member States refused to support the Commission’s plan to redistribute asylum seeker and other initiatives. This position reflected widespread anti-immigration sentiment among their respective populations, but was also the effect of the pressure put on the four governments by Eurosceptic parties and/or electorates connected in transnational networks committed to politicizing the migration issue (Koß and Séville 2020). Yet the group’s stance was also an adversarial reaction to what was perceived as an unwarranted attempt by Germany to take the leadership of the EU’s response to the crisis—and to the Federal Republic’s ascendency over a Union whose fundamental rules they had been trying to change in their favour (Cichocki and Jabkowski 2019). Moreover, Germany’s unilateral decision was regarded as amounting to a breach of the informal norm of consensus-seeking in the Justice and Home Affairs Council—which had already been transgressed with the actual use of qualified majority voting method (instead of the usual ‘consensus-seeking in the shadow of majority voting) in a

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sovereignty-sensitive issue such as the allocation of compulsory quotas (Trauner 2016).12 While the German government’s uncustomary contestation of the usual EU decision-making processes on asylum was regarded with suspicion—if not genuine fear—by fellow members of the intergovernmental institutions of the EU (Council and European Council), the notion of a creeping, overbearing German hegemony became quite common in national public discourses and among observers. Accusations against Germany have built both on the myth of a never-quenched thirst for domination—only, this time, more subtly satisfied through the European integration project, compared to the violent experiences of the twentieth century—and on resentment fuelled by years of austerity, blamed on the country’s inflexible neoliberal credo, its economic supremacy and its lack of solidarity towards debt-ridden fellow Member States since the outbreak of the Eurozone crisis (Hellman 2016; Nedergaard and Snaith 2015). According to this notion, the country’s welcoming culture’ served as a subtle instrument of domination. The contention was epitomized in a speech by Hungarian Prime Minister Viktor Orbán, in which he addressed the German government’s unilateral suspension of the Dublin procedure as a case of ‘moral imperialism’ (Benner 2016; Caporaso 2018). As the argument goes, the domination of the moral debate on the issue of refugees enabled prominent nations such as Germany (or France) to determine what the most appropriate EU asylum policy would be with no heed for other Member States’ prerogatives (Nedergaard 2019). Conversely, and supported by other east European countries, Orbán asserted that Member States should be allowed to determine their own refugee policies, especially as regards quota allocations. As argued here, Germany’s behaviour seems more accurately accounted for by the notion of leadership—which the country exercises based on preferences and political processes that are deeply nested within EU institutional structures and practices (Katzenstein 1997). One can see that the terms of the debate on moral obligation versus moral imperialism can be confusing,

12 The Council’s two decisions (taken by qualified majority voting) on relocating a

mere total of 160,000 asylum seekers were voted down by the Czech Republic, Slovakia, Hungary and Romania. As an effect of the failure to apply the quota system, the Czech Republic, Hungary and Poland were referred to the Court of Justice of the EU (CJEU) together for ‘non-compliance with their legal obligations’ on relocation. Slovakia was let off because of the relocation of 16 people.

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and prone to being bent for specific political purposes. Whichever the ‘right’ perspective, Germany is far from irreproachable in terms of justice as non-domination: the timing of the inclusion of the Balkan states in the national list of ‘safe countries’—and the attempt to do so with North African ones—looks very much like a way to ‘pass the buck’ to neighbouring countries, dumping on them the duty of providing asylum. As for the EU-Turkey statement, the arrangement is informed more by inter-state justice than alternative conceptions. The statement sits awkwardly with the non-refoulement legal principle, as it sidesteps the issue of prohibiting repatriation of migrants before giving them the opportunity to have their application processed, in exchange for mere diplomatic assurances to ensure protection from persecution (Guild et al. 2015). Moreover, connecting humanitarian aid with security goals not only weakens good governance principles, but also impinges on transparency, accountability and human rights protection, which are basic elements of a conception of justice as impartiality (Geddes 2009; MorenoLax 2018). As far as justice as impartiality is concerned, one might evince from Germany’s traditionally compliant attitude towards international law that its migration policy and asylum system is characterized by strong protection of migrants’ rights as stated in international conventions. Admittedly, the government’s intent to inform immigration and asylum policy in the pursuit of national interests has been constantly counterbalanced by the judicial review of ordinary courts and the powerful Constitutional Court—until recently very careful to ensure the compliance of domestic norms with EU and international law. In fact, since the 1990s and throughout the 2000s, Germany’s foreign policy has been increasingly ‘normalized’, and national interests have been defined and pursued in a gradually more self-serving way. The persistent cooperative bias of Germany’s European and foreign policy has not prevented the country from taking on a role as a strategic and moral point of reference in policy areas such as immigration and asylum, both in their internal and external dimensions. Expectedly, caveats and inconsistencies are quite easy to find, as is the case with the already mentioned list of ‘safe states’, which has prevented people living in still comparatively unstable Balkan countries from asking for protection for reasons that have nothing to do with their safety, but only with Germany’s interest in preventing further increases in the human flows along the Balkan route.

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The intergovernmentalization of the EUMSG, with Germany at its centre, has taken place at the expense of the Union’s usual forms of legal and ethical legitimacy, as it has impinged on the primacy of formal procedures and the (qualified) cosmopolitan purpose of the integration project—and also encroached on the system’s very cohesion. Among other effects, the ‘emergency mode’ has allowed inter-state justice to offset cosmopolitan values—for instance through restrictive interpretations of the non-refoulement principle (e.g. through the establishment of domestic accelerated asylum procedures). Moreover, as the response to an ‘emergency’ is mostly humanitarian in nature, limited in time and prone to securitization, the EUMSG has focused disproportionately on flows directed towards its Mediterranean and eastern borders, deliberately overlooking South-South migration—therefore abdicating to its ambitions as a first-rate international actor. This framing of the crisis has also affected a set of crucial distinctions underlying the EUMSG (often in order to cut down arrivals), including the difference between forced and ‘economic’ migrants—with other categories, such as family reunification and climate migrants, forced into the aforementioned classes or just disregarded—and the difference between the responsibilities of final destination and first asylum countries. As for justice as mutual recognition, Germany’s immigration policy appears quite ‘sensitive’ to the individual and collective conditions of immigrants and asylum seekers, though not enough to be deemed ‘fair’ according to a notion of justice that addresses the structural inequities resulting from applying general measures to unequal real circumstances. The German policy’s overridingly pragmatic concerns about the feasibility of migration and asylum policies, together with a number of unwarranted assumptions and misrecognitions about foreigners (including those actually beneficial to the latter), make it quite inconsistent with a notion of justice resting on reciprocal practical knowledge. This appears to be the case with special reception conditions for specific nationalities. Accelerated and fast-track reception procedures, dedicated reception centres, and the implementation of special regimes may be aimed at merely streamlining asylum policy and clearing out pending cases, or, at best, prioritizing cases regarded as ‘objectively’ more serious. These policy measures might be based on well-intentioned assumptions about who is in immediate danger and who and where can be considered ‘safe’, but end

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up thwarting the painstaking dialogue essential to rooting out the unintended consequences of applying abstract principles of justice to unequal conditions. Migration and asylum policy measures may prove prone to ‘local compulsive universalism’: instead of laying the groundwork for coping with the lack of common institutions and understandings, they may tend to abridge it through the one-size-fits-all requirements to integration, as in the case of the integration courses designed for special target groups and immigrants with additional advancement needs. Although they may serve as a practicable vessel of cosmopolitan values, measures such as these are still liable to overlook the unique conditions of the ‘concrete other’, with little heed for the stories told by their designeted recipients. Moreover, as a major hub of the ‘non-linear multilevel governance’ provided by the ‘blurred’ EUMSG (Piattoni 2009), which reinforces the framing of the surge in migrants’ arrivals in terms of ‘crisis’, Germany’s migration and asylum system seems prone to undermining— if not completely dissolving—(forced and non-forced) migrants’ agency, whose identity as ‘concrete people(s)’, individually and collectively, gets lost in the gaps of this ‘loose’ EUMSG modality.

Conclusion Throughout the years, Germany’s immigration and asylum policy appears to have been heavily influenced by two major factors, frequently at variance with each other: on the one hand, the need for foreign labour— contingent on the ups and downs of national economy—and on the other, the intent to conform to each of the domestic and international selfrepresentations that the country has successively embraced. Accordingly, Germany has shifted from a self-styled ‘country of no immigration’— one that nonetheless brought in a massive amount of manpower, and tried to reconcile this inconsistency through the ‘guestworker model’ informing much of its immigration policy—to an increasingly overtly de facto immigration country. This new condition stemmed from factors ranging from the cumulative effect of case law equating the rights of migrants to those of German citizens, to a distinctively liberal asylum policy aimed at making the Federal Republic the nation-state of the huge German diaspora generated by the downfall of the German Reich. At the same time, German governments have constantly (albeit with varying degrees of consistency) committed their immigration and asylum policies

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to the image of a country fully compliant with the post-World War II international order—including both its predominantly international (e.g. the principle of non-interference) and cosmopolitan components (e.g. the protection of human rights). Since the mid-2000s, with Germany’s transition from ‘sick man of Europe’ to economic powerhouse, its well-known political stability and the rise of Angela Merkel as one of the top figures in the EU’s political system, discourses (and fears) about the country’s role as leader of the Union have become ubiquitous. The effects of the ‘polycrisis’—including the above-mentioned intergovernmentalization of the EUMSG—created the conditions for these debates to become an increasingly pressing political issue. The 2015 migration ‘emergency’ forcefully raised the question of whether Germany can provide some ethical guidance to the EU and its external action—and what kind of guidance that would be. Admittedly, when Merkel’s experiment to selectively overlook the Dublin Regulations—apparently based on a conception of justice as impartiality—failed to inspire consequent (not necessarily analogous) conduct in other countries, Germany seemingly showed little hesitation in switching back to a conduct informed by a notion of justice as (inter-state) non-domination, as evidenced by the logic underlying the EU-Turkey statement (largely negotiated by the German government). Nevertheless, these ethical tensions may also be examined from the perspective of the mutated governance environment within which they emerge. What may appear as an over-pragmatic attitude by Germany may in fact be regarded as the most consistent reflection of the EUMSG’s ethos through which the EU has been facing the ‘crisis’. Two aspects can be identified that have made Germany the best-suited actor within the EU political system to ‘lead’ a horizontal and intergovernmental EUMSG modality. One is Germany’s enduring (albeit decreasing) built-in reluctance to act as a ‘proper’ leader, not necessarily because of its ‘ghosts of the past’, but rather due to the embeddedness of basically every aspect of its own political system (from the institutional and constitutional setting to the party system) in that of the EU. Although the emergence of Eurosceptic parties has started to defy this structural alignment, ever since the ‘polycrisis’ broke out, German governments have shown a strong commitment to preserving the crucial accomplishments of the integration process such as the Schengen Area, the single market and the Eurozone. For all the ineffectiveness that it entailed, even the lack of a coherent national model of migration policy—which rather amounted to a variety

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of ad hoc rules and measures (Joppke 1999)—made Germany particularly apt to occupy a leading—albeit anomalous—position in this fluid modality of the EUMSG. Whether and how the country will be able to maintain and reinforce its status in more ‘normal’ circumstances—provided there will ever be any such thing—is still an open question.

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CHAPTER 10

The EU Migration System and Global Justice: An Assessment Enrico Fassi and Sonia Lucarelli

Since Jacques Poos’ infamous over-optimistic statement at the beginning of the Yugoslav War in 1991 that “the hour of Europe” (meaning what would have soon become the European Union) had arrived, the EU has faced several challenges showing that the hour of an effective, coherent and cohesive Union has still not arrived. More recently, the three events that more than anything else have weakened the EU’s credibility as an international actor have been the UK referendum of 2016 which eventually led to the country’s withdrawal from the EU in 2020, the economic crisis of 2008ff and the so-called migrant crisis of 2015ff.1 The EU’s 1 As we draft these conclusions the COVID_19 pandemic is not over and it is too early to say if this is the fourth challenge is worth adding to the list, but it looks like this is the case.

E. Fassi (B) Catholic University, Milan, Italy e-mail: [email protected] S. Lucarelli University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s) 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9_10

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European and international credibility has been severely affected by the poor internal solidarity and internal divisions manifested in these three circumstances (Fabbrini 2015; Wolf and Ossewaarde 2018; Caporaso 2018; Scipioni 2018). While this is not a new phenomenon for a hybrid polity like the EU, which retains a broad, intergovernmental character, the European reaction to the migrant crisis and more in general the EU’s difficulties since then in putting in place a truly collective mechanism to manage the migration challenge, coherent with its own values, has been even more detrimental to the credibility of the EU as an international actor.2 The response of the EU Migration System of Governance (EUMSG) (see Lucarelli 2021) has been characterized not only by a renewed lack of internal solidarity among Member States, unable to agree to take on shared responsibilities, but also by collective reactions which have led to three main outcomes with consequences that cast a shadow on the EU’s long-term self-representation as a principled actor: “paralysis”, “bordering” and “externalization”. The process that has led to these results has been effectively explored as “the securitization of Schengen” (Ceccorulli 2019), that is, an attempt by EU institutions to save Schengen from increasingly frequent and uncoordinated suspension by Member States in late 2015 to stop secondary movements towards their countries. What has been less studied is the context—political, historical and institutional—within which Member States’ responses were conceived. This book aims to fill this gap by exploring the norms and practices regarding migration of a sample of countries in the EU Migration System of Governance. By looking at norms, however—and this is the second and probably most original contribution of the book—we aim to explore not only the legal setting but also—and even more so—the normative debate in the selected countries with respect to a “just” migration policy. The book, therefore, underscores migration governance as a complex effort to identify and give weight to different justice claims depending on who is perceived to be the recipient of rights (the EU, the national community, human beings, the subjective individual) and on related moral responsibilities there attached.

2 Cf. among others, Chaban and Magdalena (2014), Chaban et al. (2019, 2020).

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In this conclusion, we will first identify the three main “outcomes” of the EUMSG since the so-called migration crisis. We will then point out some of the core elements of “substantive” governance that have led to the described outputs, at the same time assessing their normative implications in terms of justice. Finally, based on our analysis of the performance, norms and justice claims at play in the EUMSG, we evaluate their implications for the EU’s international actorness.

The Outcomes: Paralysis, Bordering and Externalization The analysis of the EUMSGs’s performance points to three main outcomes, each with its own specific problems, but all due to the peculiar governance of migration in the EU: paralysis, bordering and externalization. The slowness and reluctance of the EUMSG’s response to the pressure of rising migration flows are perhaps long-term features of the system, testified to by the solo management of search and rescue operations in the Mediterranean Sea undertaken by Italy in 2013, with the Mare Nostrum operation (Ceccorulli 2021b). Obstacles to activating an EU response have continued and “exploded” during the pickup of the subsequent so-called migration crisis of 2015–2016 and afterwards. When concerns about irregular migrants crossing national borders began to be shared among Member States, the issue started to be politicized in national political systems and instrumentalized by populist forces. This led to uncoordinated suspensions of Schengen which still could endanger the EU. At this point, the EU was at the same time pushed to adopt measures that could ensure its ability to control its external borders, and paralysed in its ability to develop collective norms. The victims of the EU’s paralysis have been the reform of the asylum system and the Dublin Regulation, but also the Union’s participation in the UN Global Compact for Safe, Orderly and Regular Migration (Ceccorulli 2021a). In all these cases, the EU’s paralysis has negatively affected the EU’s potential as a norm setter and has impeded the adoption of norms which could facilitate fairer management of migration flows at the regional and global level. The second outcome of the EUMSG’s response to migratory pressure was what can be labelled as “bordering”. Bordering has entailed the

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enhanced control, patrolling and securitization of Member States’ physical borders and, as shown by the European Commission’s response (to “save Schengen”), of the external borders of the EU. Probably never before had the EU’s internal and external borders been perceived in a harder way, as during and after the migration crisis. The construction of fences, the deployment of the EU Border and Coast Guard on the external borders, and the patrolling of the Mediterranean sea by EU operations have conveyed the message of a fortress Europe struggling to obstruct irregular crossing so as to preserve the internal free movement of European citizens. Bordering practices have occurred also at the cognitive level of the borders which separate culturally-defined national communities. Despite the different national traditions of migration policy, in all the Member States analysed in this book, there has been a process of rhetorical and practical attention to the protection of national borders. In some cases (e.g. France), this has been implemented mainly with practices aimed at controlling the frontiers with countries deemed unable to control their external borders (e.g. Italy) and legitimized as a practical need. In other cases, these practices have been supported by a nationalistic narrative claiming the need to protect the cultural homogeneity of the country (e.g. Hungary). In all cases, however, the effect on the perception of the relevance of borders as boundaries of rights and duties has been enhanced. Moreover, borders have eventually come to coincide with frontiers of solidarity, although with reduced interstate solidarity also within the EUMSG. Finally, we have witnessed “external bordering” and “internal bordering”. External bordering has been the outcome of the EUMSG’s support for enhanced border control in third countries such as Turkey, as a result of the EU-Turkey statement, or Libya, as a result of the ItalyLibya agreement. “Internal bordering” has resulted from the creation of a multiplicity of centres and hotspots in Member States, and the semiisolation of areas such as Lampedusa in Italy, Lesbos in Greece or the area of Calais called “the jungle” in France. The “logistic rationale” that has led to the definition of such new internal, more or less solid borders, has also had significant implications for the definition of new “borders of rights” as we will see below. Finally, the EUMSG’s response to migratory pressure has led to increased externalization of migration management. The external dimension of migration policy is not a new issue and it is a necessary component

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of any migration policy, but the form it has taken is particularly problematic. In fact, by delegating to third countries the task of simply stopping migration flows to Europe (as in the case of the 2016 statement with Turkey or the 2017 agreement with Libya), the EUMSG (both EU Member States and institutions) has delegated the responsibility to protect potentially vulnerable migrants, enabling significant violations of human rights. Certainly, in terms of EU migration policies, the creation of an “external dimension” based on (the search for) the active cooperation of countries of origin and transit is far from new, since it was already envisaged in the EU Global Approach to Migration in 2005 and in its revised version in 2011—the Global Approach to Migration and Mobility. Moreover, the practice of establishing bilateral agreements with third countries to externalize some aspects of migration control is a phenomenon that had already been adopted by many Member States—France and Italy for example—in the past (e.g. the 2008 Treaty of Bengasi between Italy and Libya). However, this recognition should not lead us to underestimate the practical and normative relevance of the “externalization” shift. Externalization as inaugurated by the EU-Turkey Statement of 2016 and the Italy-Libya agreement of 2017, the logic of which was later replicated in several other instruments and agreements both by Member States and by the EU (e.g. Migration Partnership and the EU Emergency Trust Fund for Africa), has resulted in the delegation of responsibility for migration control with relevant implications for the functioning of the EUMSG and the respect for the fundamental rights of migrants, as we will see below.

Substantial and Normative Challenges to the EUMSG The three outcomes highlighted above—paralysis, bordering and externalization—are per se important elements that characterize the EUMSG’s response to the migration crisis, and that most likely will continue to affect EU migration policies for the years to come. We claim here that the three outcomes are a result of the EUMSG’s peculiar governance mode, which links national prerogatives and competences on migration with policies at the EU level; moreover, these outcomes and processes will have relevant repercussions for the significant achievements of the European integration process, such as the free movement of people—in the context of the single market, but even more so in the context of the Schengen area. It is a well-known fact that the uncoordinated suspension

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of Schengen by several EU countries in response to migratory pressure pushed the EU Commission to enhance control of the EU’s external borders, support the creation of the hotspots and enhance agreements with third countries (Ceccorulli 2019). What has been less explored is the national context within which the individual national responses were formulated and how they fed back into the overall functioning of the EUMSG. For this reason, we have decided to unpack the EUMSG into some of its national components. The analysis of the EU level and the sample of EU Member States here considered—Greece, France, Italy, Germany, Hungary, the UK and Norway—highlights both common traits and significant differences in terms of substantive responses and justice implications. In the individual chapters of the book, the historical and institutional roots of migration policies in the individual countries have been analysed, underlining how each country’s history (as a colonial power, for instance), or a particular culturally grounded understanding of national identity and citizenship (more or less related to ancestry), has impacted national legislation and the politics of migration. These national differences, which come close to what could be labelled different “migration cultures”, represent obstacles to a smoothly functioning EUMSG when significant migratory flows are directed to EU/rope rather than to individual countries. In this conclusion, we want to analyse the responses of the sample countries to migration pressures since 2015 in the context of the EUMSG. We equally aim to underscore the normative dimension of their responses and the justice claims that have been prioritized. As we have seen in the introduction to the volume, any political decision is a de facto compromise between different justice claims, differing depending on who is perceived to be the recipient of rights (the EU, the national community, human beings and/or the subjective individual) and on related moral responsibilities there attached. Accordingly, we have addressed this largely unexplored facet in the analysis of the EUMSG by looking at the EU and Member States’ migration policies from the perspective of justice. More specifically, starting from the threefold concepts of global political justice proposed in the introduction of the book—justice as non-domination (an act is just if it does not entail arbitrary domination among states), justice as impartiality (an act is just if it respects the fundamental universal rights of individuals) and justice as mutual recognition (an act is just if takes into due consideration the subjectivity of each)—we elaborated an analytical framework

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connecting these broad perspectives on justice with specific ethical positions in relation to migration, thus identifying the main claims for justice that legitimize decisions within the EUMSG. We can classify the Member States in the EUMSG in three analytically distinct (though partially overlapping) groups: leaders, frontliners and peripheral states. The leaders are those states that have contributed more than others to defining “the new normal” in the policies of the EUMSG, and thus had more weight than others in the overall normative direction of the system. At the same time, they represent privileged observation points or laboratories where migration concepts and practices become visible earlier. The frontliners are those states that have been more directly and significantly affected by irregular arrivals, but had less leverage on the EUMSG’s positions. Peripheral states are those that are (or were during the “migrant crisis”) at the edge of the EUMSG because they are not full members of the EU rings of integration (being out of Schengen or the single market). The decisions taken by states in each group have had an impact not only on the EUMSG’s substantive governance (or lack of it), but have also and more importantly affected the justice claims that have been prioritized. The Leaders: “Setting the New Normal” The so-called leaders have a specific weight in the ultimate equilibrium emerging from within the EUMSG between different policies and conceptions of justice. More than others, they contribute to defining “the new normal”. The case of France, in this view, is particularly interesting, since its demographic, economic and political weight makes it a key actor in a policy area where “what is perceived among politicians as ‘the European norm’ consists not only of formal EU laws, but also and even primarily of what is common practice among EU Member States” (Block and Bonjour 2013: 217, Grappi 2021). Indeed, while France describes its migration policies as driven/constrained by the European dimension, at the same time it has been able to advance its national priorities within the EUMSG, thus influencing a pragmatic response driven by an operational rationale that Giorgio Grappi in his chapter has called logistification. Inspired by a logistical rationale in the management of migration, the concept of logistification as used to describe the French approach to migration and asylum helps to capture the ongoing shift

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towards a limited and narrow conception of justice that is already affecting migrants’ rights, interstate relations and the EU, well beyond French borders. The adoption of the logic of logistics implies a minimalist understanding of what is just in terms of migration policies, resulting in growing discretionary power in granting migrants’ access to rights and protection that ultimately reflects their subordination to the needs of the labour market. Far from being the exception, France’s logistification has been and is an approach that has also been adopted by other European countries. During the 2015–2016 “crisis”, a logistical approach, based on the attempt to organize migrants’ movements and distribute arrivals in an orderly way, inspired the EU-led creation of hotspots and centres in frontline countries where the EU provided logistical support. This “new normality” has sometimes produced the unintended result of multiplying the sites of crisis and has occurred at the cost of due attention to migrants’ human rights and specific subjective rights (e.g. impacting asylum procedures). Hence, these policies have been implemented at the cost of an understanding of justice as impartiality and mutual recognition. Similarly, an analysis of any system of governance in Europe would be incomplete without taking into consideration Germany’s material and normative contribution. In the specific dimension of migration, this assumption seems even more corroborated. Under the guidance of Chancellor Angela Merkel, the country has indeed played a role that Antonio Zotti (2021b) describes as “unambitious leadership”, but which nonetheless has significantly oriented both the substantive and normative evolution of the EUMSG in recent years. This was first seen in 2015 with the adoption of the “open door policy” towards Syrian refugees escaping from the conflict. Albeit unilateral, short-lived and even accused of being a hegemonic attempt and an expression of “moral imperialism”, that decision marked the European debate on migration, at least initially, in a direction more open to conceptions of justice as impartiality and mutual recognition. Second, in an apparent paradox, a few months later, Germany took the lead in negotiations with Turkey that resulted in the “statement” of March 2016, thus contributing to driving the EUMSG towards the externalization mode. Though the external dimension of the EU’s management of migration has been in place for some years, the turn towards “externalization” that followed the so-called migration crisis shifted the burdens of protection (of migrants) and control (of migration flows) to third and neighbouring countries. This actually amounted to a substantial change in the EU’s ethical posture, whereby its role shifted

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from that of “norm externalization” to that of creating “normative externalities”. The first, traditionally associated with the idea of the EU as a normative power (Manners 2002), was anchored to a notion of “externalization” as the process through which non-EU actors were made to adhere to norms and practices similar to those in effect in the EU, or to behave in a way that generally satisfies or conforms to its policies (Lavenex 2004; Boswell 2003). Instead, the EU-Turkey statement shows the failure to balance pragmatic goals—“handling the emergency”—with questions of coherence with the fundamental principles and values informing EU policies: from the point of view of justice, while conceptions of nondomination seem to be enhanced for the EU, Member States and Turkey, this comes at the expense of impartiality and mutual recognition. The Frontliners: Where Dilemmas of Justice Are Most Critical The normative evolution of the EUMSG takes on a different meaning when observed from the perspective of the “frontline states”, that is Members States whose national borders partially coincide with those of the EU, and that have been on the front line in actually managing the surges in migration flows. Greece is a case in point, demonstrating how the interactions between the EUMSG and the peculiarities of the domestic context can result in laws, policies and practices that are deeply contradictory in terms of justice. On the one hand, the Europeanization of Greek asylum and migration policies, and especially the transposition of the Common European Asylum System (CEAS), resulted in a legal framework that strengthened fair and impartial procedures, allowing for individual experiences and vulnerabilities to be considered—in line with the logics of justice as both impartiality and mutual recognition. Yet, notes Lena Karamanidou (2021), mainly for domestic reasons, asylum and migration policies in Greece have been consistently at odds with these conceptualizations of justice and in practice have resulted in persistent violations of human and asylum rights and CEAS standards. In this context, the migration crisis exacerbated the contradiction between providing refugee protection and Westphalian imperatives of protecting the borders of the European Union against migration, to the point that the EU’s role is sometimes perceived as a form of “domination”. Greece represents a significant case within the EUMSG since it illustrates that “both the logics of justice and violations are reinforced through the

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interaction between domestic dynamics and EU policies” (Karamanidou 2021). Italy is in many ways a similar case, characterized by a paradoxical continuous state of “emergency” in its overall governance of migration, from regulating legal access to and presence in the country, to readiness to cope with massive and unexpected arrivals on its shores, to the ability to offer proper reception and integration to the migrant population. In particular, argues Michela Ceccorulli (2021b), “the reception system is the Achilles heel of Italy’s asylum policy”, a weakness that motivates frequent recourse to an (often politically motivated) “emergency rhetoric” in times of massive arrivals, but also impinges on the actual treatment of asylum seekers and refugees—a role that the Dublin Regulation assigns to countries of first entry. As in the case of Greece, in Italy the limits and flaws of the EU system of governance are felt the most, due to their reverberation with domestic weakness, loopholes and perpetual delays, well captured by the concepts of “pressapochismo” (not addressing the issue with due concern) (Einaudi 2007) and the consequent “tyranny of the emergency” that has characterized Italy’s approach to migration. Even more than Greece, perhaps, Italy has been the vivid example of the ethical dilemmas faced by frontier states: confronted with a lack of solidarity within the EUMSG, Italy has resorted to “exceptional measures” and debatable practices in terms of justice—agreements with controversial regimes, such as Libya and Sudan, the return of migrants, the criminalization of NGOs’ role and the “closure” of Italian ports for rescued migrants. All these policies have contributed to borderization and externalization practices. From the normative point of view, what emerges is a catch-22 situation in which “the country cannot win” because it inevitably falls prey to many accusations, including not respecting human rights, the asylum law or, on the contrary, of favouring irregular immigration, such as in the case of Operation Mare Nostrum (Sciortino 2017, Ceccorulli 2021b). But the migrants are not winning either—since their rights and subjectivities are less and less respected. To some extent, Hungary can be considered another example of a frontier state in which the tensions and contradictions that mark the different conceptions of justice within the EUMSG have been exploited by the current government to advance a nationalistic and illiberal project that overtly questions the EU system and its values. Migration has been at the centre of this process, and within the Visegrad Group (V4 - Poland, Slovakia, Hungary and Czech Republic), Hungary has been the most

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vocal in rejecting what it terms as acts of “domination” by the European Union and other Member States towards east European countries. Hungary’s oft-criticized policies and practices—building fences, obstructing refugees’ access to its territory, repressive state practices concerning the treatment of refugees, refusing relocations—are the practical manifestations of this process (Melegh et al. 2020). In particular, Melegh et al. (2020) show that Hungary has oscillated between three different approaches with respect to the EUMSG: constrained compliance, positional insecurity and a redefined national position. Constrained compliance refers to the practice of satisfying (western) universalist claims of global justice only from a formal point of view in terms of respect for human rights and asylum procedures. Positional insecurity refers to a kind of “middle-sibling syndrome” rooted in claims of EU interference and calling for the EU to recognize Hungary’s justice claims, while at the same time practising domination towards other “weaker” states such as Serbia. By aiming to redefine national positions, then, Hungary has implemented active measures aimed at strengthening the country’s relative position in global competition, attaining non-territorial national expansion by providing citizenship to non-resident populations which could claim historical-ethnic ties to the country—a policy involving breaches of impartiality and practices of dominance. The overall result amounts to a radicalization process, whereby the principle of “Westphalian fundamentalism” that places the preservation of national sovereignty above everything else is advanced against international law and the EU, rejecting any alternative vision of justice, or mechanisms of international coordination, as a threat and undue interference. Although this case is somehow unique within the EUMSG in terms of amplitude and radicalness of the contestation, it also reveals some of the inherent tensions of the system as a result of the asymmetric interplay between smaller Member States and major European powers with different goals, positions on EU integration and migratory backgrounds. Peripheral States: Centripetal and Centrifugal Normativity Norway and the UK were countries at the margins of the EUMSG, the first because although it is a member of the Schengen area it is not a full member of the EU, and Britain because it was a member of the EU but not of the Schengen area and because since June 2016 it has been engaged in a process of separation from the EU that has led the

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country out of the Union since January 2020. These countries are also peripheral from a geographical point of view in terms of the main migration routes. However, their relationship with the prevailing norms of the EUMSG is divergent, with Norway willingly adopting rules, standards and procedures informing EU approaches to migration and asylum, and thus implicitly absorbing their ethical content and, as a consequence, enlarging their strength and reach—without contributing to shape it. The UK instead presents a centrifugal attitude towards these norms and rules, making the goal of taking back national “full control” of migration the cornerstone of the Brexit process. Not an EU member, Norway is nonetheless part of the European Economic Area (EEA) and adheres to a host of other agreements and accessions to EU policies, including in the area of migration. As an EEA member, Norway is bound by specific provisions for labour and economic migration within this area, due to the rights attached to free movement and non-discrimination based on nationality. Moreover, Norway is part of the Schengen system of passport-free travel in Europe as well as the Dublin system of asylum applications. In Norway, the migration crisis has had effects and dynamics similar to other EU Member States, but on a smaller scale. Between 2014 and 2016, the country registered an increase in the number of refugees and asylum seekers—from 11,480 asylum applications in 2014 to 31,145 in 2016. This development led to the “overburdening” of the migration apparatus, and “extraordinary measures” had to be taken to register and accommodate the increased number of refugees. In addition, part of the government’s response was to temporarily suspend the free border regime of the Schengen agreement by reinstating border controls—after similar decisions by the Danish and Swedish governments, hence highlighting the strong interconnectedness and transnational character of migration issues in contemporary Norway. In terms of justice, the definition of economic migrants in Norway, through the “EEA connection”, is conceptualized by Espen Olsen (2021) as “quasi-cosmopolitan” in its extension of rights to non-citizens with EU citizenship or nationality in an EEA country. Still, this approach is at best “bounded” adherence to an idea of impartiality, as it falls short of universality in a true cosmopolitan sense—there is no “universal” right to economic immigration to Norway. Overall, the role of Norway within the EUMSG could be defined as a form of centripetal normativity. Norway’s willingness to adopt EU rules without being an EU Member State has

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the ultimate effect of reinforcing the system, reproducing its practices, adopting its concepts and thus reaffirming its normative equilibria. The Norwegian case is particularly interesting because it provides a deeper understanding of the EUMSG by highlighting the complexity of this multi-level, multi-actor, multi-layered system in which EU membership, migration policies and migrants’ rights are often non-completely overlapping areas. At the same time, it draws attention to the issue of migration within Europe—an element that is often overlooked in the analysis of the migration crisis, but that nonetheless has been fundamental in defining some traits of the European migration regime and is absolutely key in the case of the UK (Zotti 2021a). The UK’s participation in the EUMSG, due to Brexit, might look even more “peripheral” than what it was in the past. Nonetheless, an analysis of the country’s substantive and normative role within the EUMSG is worth looking at, especially considering that the retrieval of full control of borders and immigration policy was one of the main points of the “Leave” campaign. Since its outset, the UK has played a sui generis role in the European integration project, as evidenced by the opt-outs it obtained in EU policy-making domains as important as Economic and Monetary Union (EMU) and Justice and Home Affairs (JHA). Although not a member of the Schengen border-free area, the UK has been affected by its existence—particularly evident in the establishment of so-called juxtaposed border controls in France—and has participated in the policing and security aspects of Schengen. While the UK largely abstained from using the instruments the EU has sought to use to facilitate legal immigration, or those adopted to tackle irregular immigration, it did participate in the “first phase” of asylum directives, has opted into the Dublin III Regulation and has also adopted the recast EURODAC Regulation. The UK’s response to the migration crisis has been shaped by the policies that have characterized the evolution of the country’s approach to migration in the last decades and in particular by two goals: (i) reducing the inflow of foreign people through the “net migration cap”—i.e. the difference between the number of foreign nationals who move to the UK for a year or more and those who leave for the same period; and (ii) the creation of a “hostile environment” for unauthorized immigrants, asylum seekers included. A vocal opposer of search and rescue operations in the Mediterranean, considered a “pull factor”, the British government did create a specific instrument—the Syrian Vulnerable Persons Scheme— which, while successful in terms of the degree of integration achieved,

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has been criticized for affecting an extremely limited number of people relative to Britain’s demographic size. No other country has received so few asylum seekers compared to their population. Significantly, the British humanitarian effort has been presented to the British public as a more effective alternative to the EU plans for a quota system for resettlement, which the UK opted out of. Moreover, as noted by Antonio Zotti (2021a), the moral argument underlying Brexit appears to be in line with a notion of justice as nondomination, given the emphasis on people’s self-determination, state sovereignty and the democratic process. On the other hand, the new Australian-style points-based immigration system announced by Boris Johnson seems to rest as much on economic rationale as on a principle of Westphalian sovereignty, which predicates freedom from arbitrary interference coming from other states, and sets stringent conditions to entry and stay. Summing Up Paralysis, bordering and externalization are three modes of action enhanced by and during the latest “migration crisis” which will have long-term consequences for the management of migration in Europe in terms of practices and normative legitimation thereof. The roots of these outputs are to be found in the intergovernmental character of the EUMSG, combined with EU institutions’ concern about safeguarding the achievements of the integration process—most of all Schengen, threatened by uncoordinated suspensions. Not only do the countries in the EUMSG have different historically-shaped migration cultures, but they have also had differing roles in the EUMSG during the 2015–2016 “migrant crisis”. Leaders have been less affected (due also to their reception capacities, as in the case of Germany) than frontliners, but at the same time have been able to reinforce the legitimacy of models of management such as logistification and externalization, which are becoming the new norm in the functioning of the EUMSG. Frontliners are the countries which struggled the most with the intrinsic tension between controlling migration and guaranteeing due respect for human rights and specific needs. They have become the sites where bordering (internal and external bordering) has been attempted as an EU policy. However, there are differences between them that should be pointed out: while Italy and Greece have had little leverage in policies implemented by the EUMSG (only a small part of their request for redistribution of the “burden” was

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received), Hungary’s positional insecurity and the consequent suspension of Schengen, creation of fences and accusations of domination by the EU somehow impacted the Commission’s response as provided in the Back to Schengen strategy: the self-protective attitude, inspired by a logic of non-domination, was extended at the EU level. Of the peripheral states, the UK was undoubtedly the most vocal. This was not only a result of explicit criticism of some practices initially adopted by other Member States (search and rescue), with the implicit, ethical support of the EU, but also as a breakaway country which has put internal EU mobility at the centre of the concerns of the UK population in favour of Brexit. All in all, the internal dynamics of the EUMSG have led to moments of paralysis and to the practices of bordering and externalization which have prioritized concern for the justice claims of national and European citizens with respect to those of the other stakeholders—migrants and their countries in particular. The highest cost has been paid in terms of human rights (impartiality) and the recognition of specific needs (mutual recognition).

The EUMSG: The End of the EU as a Distinctive International Power? Two images have frequently been used over the past twenty years to define the EU’s distinctive identity: “post-Westphalian polity” (e.g. Sperling 2009) and “normative power” (Manners 2002; Cf. Lucarelli and Manners 2006). The former refers to the fact that in the EU there has been a pooling and sharing of sovereignty that has transformed the Member States of the EU, and that the EU itself, as a polity, is also characterized by shared sovereignty. Moreover, it highlights the fact that in the EU the meaning of the borders that delineate the perimeters of the polity and of its Member States has changed. We can add that in the EU, the addition of an EU layer of citizenship has reduced the relevance of the Member States borders as borders of rights and duties, and has given to the EU’s external borders a more tangible juridical significance. We can also notice that the integration process has also come to define the borders of a transformed identity, which has added a layer of belonging (the European one) to the national one. Finally, the relevance of the borders of the polity as boundaries of rights and duties was reduced by a cosmopolitan approach

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to rights which made respect for human rights (for all individuals and not only for its own citizens) a masterpiece of its foundations. The second image, widely debated in the literature, has been used to describe the EU’s ability and aspiration to shape international norms and become itself a norm setter by means of example for others. The support of cosmopolitan values and norms such as those relative to human rights is one manifestation of the EU as a normative power; other manifestations have ranged from the EU’s active support for norms transformation in third countries (through democratic conditionality), to the EU’s role in setting global norms and representing a model imitated beyond its borders. Both images convey the idea of a distinguished international actor, able to transform the understanding and practice of sovereignty, redefining the relationship between rights and borders and able and willing to play a relevant role as a global norm setter. Such a post-Westphalian power would be inspired by an understanding of justice capable of constraining the practice of justice in terms of mere non-domination, in favour of a cosmopolitan view of global justice (what we call justice as impartiality) and giving priority to respect for human rights regardless of a person’s nationality. Moreover, the EUMSG’s advanced system of protecting the rights of migrants with specific needs (under the form of subsidiary protection and, in some countries, of humanitarian protection) would also point to the ability to integrate into the system the recognition of individual subjectivities (as in justice as mutual recognition). However, the image of the EU as a post-Westphalian normative power has dramatically crashed on the cliffs of Europe’s geographic borders, in the hotspots in Italy and Greece, in the Calais jungle, on the barbed wire fences at Member States’ borders, in the waters of the Mediterranean Sea and in the ink of the statement with Turkey. Both the EU’s alleged distinctiveness and the Union’s peculiar relations with borders and norms have been challenged by the performance of the EUMSG in recent years, a performance which has led to paralysis in the EU’s ability to act swiftly, to the hardening of borders as barriers and separators of spheres of rights, and to the delegation of responsibility to third countries. So, if on the one side the EUMSG has been enhanced by the creation and adoption of new instruments that have been developed to cope with the 2015ff challenges (European Border and Coast Guard, hotspot system), at the same time recent experience has shown how an intergovernmental system of governance like the European one ends up

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hostage to intra- and international dynamics whose final effect is to “Westphalianize” the EU as far as border control and prioritization of domestic constituencies are concerned. At the same time, the EU’s borders have come to represent less and less the borders of a European identity. National debates on migration as portrayed in some of the chapters have occurred on national grounds and have oscillated between calls for the protection of the prerogatives of national citizens and the cosmopolitan respect for human rights, with some calls for enhanced European solidarity among EU Member States (e.g. Italy and Greece). In some cases (e.g. Hungary), national identity has been securitized with the claim that migration represents a cultural threat to national identities, while little attention has been paid to European identity in the political debate. Moreover, the actual policies put in place by the EU and its Member States have come close to enabling full-fledged violations of human rights and have made it impossible for the EU to play a role in defining global norms for migration and asylum as in the UN’s Global Compacts. All this has severely diminished the likelihood of the EU as a normative power and probably the credibility of the EU as a principled power at large.

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Index

A Administrative detention, 129 Agenda on Migration, 33, 35, 37, 45, 210, 240 Arab Spring, 156 Asylum, 5, 8, 11, 13, 14, 16, 19–23, 25, 34–42, 44, 46–49, 60–62, 65, 67–75, 77–80, 89–91, 93–107, 120, 121, 123–127, 130–134, 137–140, 148, 152–156, 158–166, 173–175, 178, 180, 184, 185, 188, 189, 200–205, 210–215, 218, 220, 221, 226, 228, 232–241, 246–251, 261, 265–272, 275

B Ben Ali, 156 Bilateral agreement, 149, 151, 154, 160, 163, 263 Border control, 18–20, 63, 72, 74, 78, 89, 90, 100, 104, 106, 127,

157–159, 199, 203, 206, 211, 215, 262, 270, 271, 275 Bordering, 2–5, 14, 15, 164, 260–263, 272, 273 Bossi-Fini Law, 127–129 Brexit, 2, 22, 72, 74, 75, 77–79, 272–275

C Caporalato, 123 Central Mediterranean route, 42 Centri di Accoglienza Straordinari (CAS), 133 Centri di permanenza temporanea (CPT), 98, 129 Centri per l’identificazione e l’espulsione (CIE), 129 CESEDA. See Code for Entry and Residence of Foreigners and Right of Asylum Chosen immigration, 151, 153, 158, 160

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Ceccorulli et al. (eds.), The EU Migration System of Governance, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-53997-9

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280

INDEX

Citizenship, 2, 10, 14, 18, 61, 64, 134, 138–140, 150, 180–182, 190, 191, 204, 206–208, 210, 216–218, 231, 233, 264, 269, 270, 273 Civil war in Syria, 40, 226, 228, 237, 242 Clandestini, 122 Code for Entry and Residence of Foreigners and Right of Asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile), 151, 153, 154 Colonies, 62, 63, 149, 150 Common European Asylum System (CEAS), 9, 34, 38, 49, 73, 75, 81, 89, 90, 91, 94, 95, 99, 101–108, 211, 212, 267 Commonwealth, 62–64, 71 Constant Vigilance, 123 Constrained compliance, 175, 186–188, 269 Corridoi umanitari (Humanitarian corridors), 123 Cosmopolitan, 9, 13–17, 23, 24, 60, 105, 206, 217, 218, 227, 250–252, 270, 273–275 Court of Justice of the European Union (CJEU), 99, 158, 248 Criminalization, 122, 126, 137, 139, 268 of migration, 12, 74, 123 D Decolonization, 149 Decreto flussi, 127 Discretionary power, 148, 158, 266 Dublinées , 163 Dublin Regulation, 21, 38–40, 74, 77, 78, 94, 124, 130, 131, 163, 165, 211, 221, 235, 240, 244, 247, 252, 261, 268

E Eastern Mediterranean route, 41, 42, 245 Economic crisis, 3, 122, 259 Empire, 1, 9, 60, 62, 80, 149 Ethics, 9, 17, 18, 220 EU Facility for Refugees in Turkey, 42, 48, 242 EU Global Strategy, 33, 37, 186 EU Migration System of Governance (EUMSG), 3, 5, 6, 10, 18, 22–25, 57, 60, 61, 68, 69, 80, 81, 90, 106, 108, 137, 227, 228, 243, 245, 246, 250–253, 260–274 EURODAC, 13, 39, 74, 75, 271 European asylum system, 203, 211, 212, 221, 267 European Council, 3, 20, 40, 42, 46, 188, 242, 245, 248 European Economic Area (EEA), 181, 184, 185, 190, 199, 204, 206–209, 217, 221, 270 European External Action Service (EEAS), 44, 46 Europeanization, 66, 89–91, 93–95, 107, 126, 156, 200, 203, 211, 214, 221, 267 European Parliament, 20, 39, 41, 80, 101, 102, 105 European Union (EU), 1–6, 10, 14, 17–24, 33–50, 57–60, 66, 72–75, 77, 80, 81, 89–91, 93–96, 98– 102, 104–108, 121, 123, 124, 126, 127, 129–132, 135, 139, 147, 148, 154, 157–159, 164, 165, 173–177, 180–189, 192, 199, 200, 203, 204, 206–209, 211, 212, 214, 217, 221, 225, 226, 232, 235–237, 239–246, 248, 249, 252, 259–263, 267, 269, 273, 275

INDEX

of leadership, 226, 247 Euroscepticism, 59, 65 EU Trust Fund for Africa, 43, 263 EU-Turkey deal/statement, 4, 34, 40–42, 47, 49, 101, 104–108, 184, 188, 243, 245, 246, 249, 262, 267 Exceptionalism, 69, 72 Externalization, 3, 4, 34, 41, 44, 49, 65, 188, 241, 244, 260–263, 266–268, 272, 273

F Family reunification, 20, 39, 63, 128, 149, 150, 158, 205, 213, 215, 230, 234, 236, 250 Fekl report, 153 Five Star Movement, 125 Françafrique, 150 France, 19, 22, 24, 25, 40, 43, 72, 78, 135, 136, 147–166, 201, 246, 248, 262–266, 271 Freedom of movement, 15, 62, 66, 182, 234, 235, 238 Free movement, 2, 38, 66, 72, 74, 94, 181, 200, 202, 204–206, 208, 209, 211, 217, 218, 221, 262, 263, 270 FRONTEX, 43, 72, 100, 106, 240 Frontier, 9, 36, 37, 39, 65, 127, 130, 135, 137, 262, 268 Frontier Member States, 239 Fuocoammare, 122

G Geographical reservation, 130 Germany, 19, 24, 25, 40, 43, 69, 91, 120, 160, 165, 177, 178, 180, 192, 201, 225–253, 264, 266, 272

281

Global Compact for Migration, 34, 45–47, 49, 50, 261 Global justice, 1, 5–8, 13, 24, 60, 61, 76, 77, 90, 160, 162, 165, 166, 174, 175, 180, 183–187, 190–192, 200, 201, 225, 227, 228, 269, 274 Governing of mobility, 152 Gramsci, 175 Greece, 16, 19, 21, 22, 24, 25, 38, 40–42, 48, 89–94, 98–100, 103, 106–108, 132, 189, 229, 240, 242, 244, 262, 264, 267, 268, 272, 274, 275 Guardia Di Finanza, 135 Guestworker, 203, 205, 230 model, 229, 231, 251

H Home Office, 63, 67, 73 Hostile environment, 68, 70, 71, 271 Hotspot approach, 101, 102, 104, 106, 108, 131 Humanitarianism, 239 Humanitarian protection, 125, 131, 187, 274 Hungary, 22, 24, 25, 40, 46, 173–193, 240, 262, 264, 268, 269, 273, 275

I Immigration ban, 205, 206, 221 Impartiality, 13–15, 34, 38, 48, 60, 77, 90, 91, 95, 96, 104–107, 120, 138, 148, 163, 166, 174, 175, 186–188, 190–192, 200, 217–219, 221, 227, 245, 249, 252, 264, 266, 267, 269, 270, 273, 274 Inequality, 6, 13, 15, 174, 177, 216

282

INDEX

Intergovernmentalism of the EUMSG, 228, 250 Internationalization, 203 IOM, 35, 44, 136 Italy, 2, 3, 16, 19, 21, 22, 24, 25, 38, 42–44, 46, 119–127, 130–140, 149, 156, 157, 164, 177, 189, 229, 240, 244, 261–264, 268, 272, 274, 275 L Labor migrants, 200 LANDINFO, 213, 214, 219, 220 Libya, 3, 34, 42–44, 47–49, 125, 135, 136, 138, 262, 263, 268 Libyan Coast Guard, 43, 136 Logistification, 148, 161, 162, 164, 165, 265, 266, 272 M Mafia, 123 Management, 3, 5, 8, 15, 18, 66, 74, 89, 157–160, 189, 235, 261, 262, 265, 266, 272 of migration routes, 160 of mobility, 160 Mare Nostrum, 122, 124, 137–139, 261, 268 Mare Sicuro, 123 Mediterranean, 3, 36, 42, 43, 120, 122, 136–138, 157, 229, 240, 250, 261, 262, 271, 274 Mental map, 178, 179, 182 Merkel, Angela, 231, 237, 242, 243, 245, 252, 266 Migration, 1–6, 8–10, 13–25, 33–37, 41, 42, 44–50, 58, 59, 61, 63–65, 67–71, 74, 75, 79, 80, 89–94, 96, 100, 106–108, 119–123, 125–127, 129, 134, 135, 137–140, 148–152, 154,

158–162, 165, 166, 173–179, 181, 185, 191, 192, 200–209, 212, 219, 221, 244, 251, 260, 265, 268, 270, 272 crisis, 5, 16, 35, 36, 40, 45–47, 71, 200, 203, 215, 226, 227, 239, 245, 247, 261–263, 266, 267, 270–272 culture, 264, 272 economic migrant, 4, 62, 156, 157, 161, 165, 207, 217, 218, 270 policy, 4–6, 13, 19, 23, 24, 61–63, 65, 66, 71, 76, 90, 99, 103, 105, 107, 123, 124, 147, 148, 151, 152, 157–159, 161, 163, 165, 166, 174, 175, 180, 183, 186, 190, 199–205, 211, 213, 215, 216, 227, 237, 239, 245, 246, 249, 252, 260, 262–267, 271 Minimalist approach, 164–166 Moral, 192, 248, 266 Multiculturalism, 64, 67, 69, 162 Muslims, 123 Mutual recognition, 15–17, 34, 38, 60, 78–80, 90, 91, 95, 98, 104, 105, 107, 120, 138, 148, 162, 163, 166, 174, 175, 186, 189, 191, 200, 217, 219–221, 227, 250, 264, 266, 267, 273, 274 N National identity, 12, 90, 92, 93, 108, 228, 264, 275 Nationalism, 12, 17, 176 Neoliberal, 178 Net migration cap, 68, 69, 271 New York Declaration, 45 Non-domination, 10, 12, 13, 18, 34, 38, 47, 60, 79, 90, 107, 120, 137, 148, 162–164, 166, 174, 175, 191, 192, 200, 216–219,

INDEX

221, 226, 245, 249, 252, 267, 272–274 Nordic cooperation, 202, 203 Northern League, 122, 125, 127, 129 Norway, 19, 22, 24, 25, 40, 199–221, 264, 269, 270

O Ontological security, 11 Open door policy, 226, 237, 240, 245, 247, 266 Operational approach to asylum, 165 Operation Alba, 134 Operation Pelican, 134 Orbán, Viktor, 174, 187, 188, 190, 240, 248

P Paralysis, 49, 260, 261, 263, 272–274 Points-based system, 66 Positional insecurity, 175, 186, 188–190, 269, 273 Pragmatism, 81 Pressapochismo, 126, 139, 268

R Rabat process, 159 Racial relationships, 67, 81 Reception, 37, 38, 41–43, 67, 73, 75, 89, 90, 95–100, 102–105, 107, 119, 120, 123, 131–134, 136, 138, 140, 153–156, 160, 162, 200, 202, 205, 231, 234, 236, 250, 268, 272 Refugees, 3, 4, 8, 13, 21, 34, 36, 38, 39, 41, 42, 44, 49, 61, 66–69, 71, 72, 74, 75, 77–79, 89–91, 93–96, 100–102, 106, 108, 130–133, 152, 155–157, 160, 161, 174, 175, 178, 180–185,

283

187, 188, 191, 200, 202, 203, 205, 210, 215, 218–220, 226, 228, 232, 233, 235, 236, 238, 241–243, 248, 266–270 Relocation, 21, 47, 78, 101, 105, 161, 185, 189, 242, 248, 269 Repatriates/ethnic Germans, 232–234 Report Létard-Touraine, 154, 155, 161 Residence, 20, 125, 128, 129, 131, 153, 180–182, 202, 204, 205, 207–209, 215–217, 220, 221, 231, 234, 236 Resilience, 36–38, 44, 48, 178, 186 Reverse logistics, 161 Romania, 19, 46, 177–180, 191, 234, 240, 248

S Safe countries, 39, 67, 162, 184, 212, 219–221, 235, 236, 241, 249 Sanatorie, 127 Schengen, 3, 4, 19–22, 37, 40, 41, 59, 60, 65, 66, 72, 77, 89, 94, 124, 127, 130, 139, 150, 156, 157, 160, 164, 165, 181, 203, 204, 211, 215, 218, 221, 226, 235, 236, 239, 240, 246, 247, 252, 260–265, 269–273 Secularism, 151, 162 Securitization, 12, 77, 89, 90, 94, 108, 122–124, 126, 137, 158, 250, 262 Security rationale, 66 Selective migration policies, 157 Serbia, 179, 181, 184, 189, 236, 240, 269 Solidarity, 22, 23, 36, 37, 43, 101, 124, 132, 134, 136, 151, 152, 155, 157, 164, 241, 247, 248, 260, 262, 268, 275

284

INDEX

Sovereignty, 2, 4, 8–10, 14, 20, 23, 60, 66, 76, 79, 80, 166, 174, 185, 188, 189, 192, 227, 247, 248, 269, 272–274 SPRAR, 132, 133 Sustainable development, 45, 46 Syrian Vulnerable Persons scheme, 71, 72, 271

U Understanding minimalism, 148, 266 Unequal development, 174 UNHCR, 3, 44, 92, 96, 97, 102, 105, 152, 166 Unions, 123, 127, 139, 205, 208, 231 Utilitarianism, 239

T Tangentopoli, 121 Transactional logic, 65 Trattenimento, 129 Trilogue, 40, 49 Turco-Napolitano Law Decree, 127–130, 135 Turkey, 3, 40–42, 44, 47, 49, 71, 89, 91, 101, 102, 105, 106, 179, 184, 202, 229, 241–246, 263, 266, 267, 274

V Visegrad Group, 173, 189, 247, 268 Völkisch nationhood, 234

W Welcoming culture, 228, 237, 248 Western Balkan Route, 240, 245 Westphalian, 2, 4, 5, 10, 13, 14, 16, 18, 23, 24, 60, 76, 77, 105, 175, 192, 226, 267, 269, 272, 275