BRUSSELS (AN) – Battle lines have started to form as European lawmakers prepare for a fight over how to reform the continent's troubled asylum and migration systems.
With hundreds of thousands of asylum seekers and migrants reaching Europe's borders each year, the fight over the European Union's migration policy has entangled international organizations, border security forces and a host of others in a murky web of competing interests, national politics and international law.
At the heart of the fight is the essential tension surrounding the choice between protecting lives or borders.
As monthly asylum requests this past November surged to their highest level since the Syrian refugee crisis more than six years ago, border states like Italy and Greece have called for stricter border enforcement to slow the pace of arrivals.
But evidence of illegal pushbacks – the practice of intercepting refugees before they can claim asylum – by the E.U.'s border agency and national border forces have sparked fierce debate over the 27-nation bloc's humanitarian responsibilities towards those seeking safe refuge.
At a press conference on Thursday, the new executive director of the border agency, Frontex, pledged a fresh start. Hans Leijtens, who will assume control of Frontex in March, pledged to "be very open and transparent" and to end the illegal pushback practices uncovered last year by the European Anti-Fraud Office, OLAF, that led to the resignation of his predecessor, Fabrice Leggeri.
"For me, it's three things: restore trust, revamp the way Frontex operates and really deliver tangible results," Leijtens said. "It's about improving the effectiveness, it's about assuring legality, it's about enhancing legitimacy."
Like many E.U. agencies, Frontex is self-policing without independent oversight. Even MEPs who approve Frontex's budget did not get a copy of OLAF's findings that led to Leggeri's resignation before journalists obtained it last year.
Leijtens pledged to end to the agency's black box approach to transparency. "There's nothing secret about Frontex, nothing," he said, "if we are doing our job according to the law and according to the ambition of Europe."
And in a fiery plenary debate on Wednesday in Strasbourg, France, parliamentarians focused on national authorities' attempts to criminalize the aid work of humanitarian search and rescue crews – a trend that captured the international media spotlight last week during a trial on the Greek island of Lesbos.
"Genuine humanitarian assistance should not be criminalized," Ylva Johansson, the European commissioner for home affairs who oversees the migration proposal, told the European Parliament.
"What must be criminalized is facilitating illegal entry or exit across the border for money, for profit. That is smuggling – a criminal activity pure and simple," she said. "Rescuers, volunteers have concerns. They don’t want to be punished for helping people."
Her remarks embodied the E.U.'s diversity of opposing views, in perhaps a tacit acknowledgement of the serious legwork that will be needed to achieve the high bar of consensus that any European-level reform must gain to be approved.
Some 630,890 people applied for asylum in the E.U. in 2021, roughly half of the peaks of the Syrian refugee crisis when 1,322,850 people applied in 2015 and 1,260,920 people applied in 2016, according to Eurostat figures. Syrians, Afghans and Iraqis together accounted for almost 40% of all the 2021 applications.
These numbers have crept up in recent months, rising from 66,530 in July to more than 90,000 in September and 107,300 in November, the highest monthly figure since October 2016.
The sharp increase has added fuel to the fire as refugee-harboring nations struggle to cope. The largest numbers by far are being taken in by Germany and France, followed by Spain, Italy, Austria, Belgium and Greece.
The E.U.'s 2020 proposal for a fresh start on migration kicked off negotiations on how to provide a bloc-wide framework to manage people arriving at the borders. Officials say they now hope to conclude negotiations before springtime next year, ahead of the next European Parliament election scheduled for June 2024.
Greek trial of humanitarian workers and a new law in Italy
The debate in Parliament was added to the calendar in the wake of the highly publicized trial of 24 humanitarian workers in Greece facing charges over their participation in refugee search-and-rescue efforts off the island of Lesbos.
The parliamentary debate also gained urgency with the passage of new Italian laws aimed at frustrating the work of search-and-rescue non-governmental organizations in the Mediterranean.
Human rights advocates and search-and-rescue organizations have been sharply critical of any efforts to criminalize and restrict their operations, which they say will only result in more deaths on an already deadly migration route.
"No one leaves their home, their family and their friends for fun," said MEP Evin Incir, a Swedish politician. "People do it when they have no other choice."
Migration across the Mediterranean Sea goes back thousands of years, but since the mid-1990s it has accelerated. The outbreak of war in Syria in 2011 sparked widespread crisis in Europe.
Since 2014, some 13% of the more than 194,000 people who have tried crossing the Mediterranean – at least 25,390 people – have died or gone missing, according to the International Organization for Migration.
Already this year, IOM's figures show 30 more are dead or missing.
In a case described by a 2021 European Parliament report as "the largest case of criminalization of solidarity in Europe," a court of appeal on Lesbos rejected attempts to pin charges of espionage and forgery on 22 of the 24 humanitarian workers.
The court’s procedural ruling returned the case of all but two defendants to the prosecution for possible refiling, but with the five-year statute of limitations on the charges about to expire, prosecutors have effectively run out the clock.
The court made no determination on whether actions taken by rescuers constituted a crime, and the defendants whose cases were dismissed still face the prospect of separate charges carrying up to 25 years in prison.
The case of two Greek defendants, meanwhile, was referred to a lower court. They will stand trial on charges of forgery and membership in a supposed "criminal organization" – the Emergency Response Center International (ECRI), a search-and-rescue NGO.
The defendants said they volunteered to participate in ECRI's life-saving operations, but prosecutors have essentially tried to equate ECRI's operations and fundraising with human trafficking and money laundering.
ECRI, which is now defunct, was registered with the Greek government and regularly partnered with Greek coastal authorities between 2016 and 2018.
"This case is really an indictment of Greek authorities, who are going after people for saving the lives the authorities didn't want them to save," said Bill Van Esveld, Human Rights Watch’s associate director for children's rights.
Italian MEPs, representing parties that are aligned with Giorgia Meloni's far-right government and support Italy's new restrictions on rescue NGOs, cited a long-running claim that NGOs working off the E.U.'s borders attract more refugees.
"It's been scientifically proven that the presence of these NGOs at sea is actually an attraction factor for the refugees," said Susanne Ceccardi, an Italian MEP and member of a right-wing populist party. "People have been delighted that the NGOs are there so they can leave in less safe vessels and take more risks."
Such claims are far from scientifically proven; instead, they've been repeatedly debunked by studies looking at the relationship between search-and-rescue operations and refugee flows.
A study by the European University Institute analyzing migratory flows from Libya to Italy between 2014 and October 2019 found "no relationship between the presence of NGOs at sea and the number of migrants leaving Libyan shores."
What did change when NGOs were not in the picture, the report found, was an uptick in fatalities.
Silvia Sardone, another Italian MEP and member of the same political party that includes Ceccardi, said the participation of NGOs in criminal activity – an important through-line of current Italian politics – is not in question, but a fact.
"Picking up someone and transporting them to a particular place which is decided upon unilaterally by the captain – that's not saving people's lives. That's human trafficking," she said. "These people aren't real refugees. If NGOs break the law, they should be punished."
Other lawmakers disagreed. "Checking someone's pulse before checking their passport is not a crime," said MEP Tinneke Strik, a Dutch politician who led a parliamentary working group that published a report investigating Frontex, the E.U. border agency. "Greek authorities made it one."
From organized crime to spyware
The trend of trying to criminalize humanitarian search and rescue crews is not limited to any one country.
Since 2015, nations such as Germany, Greece, Italy, Malta, the Netherlands and Spain have initiated at least 60 administrative and criminal legal proceedings against private entities involved in search and rescue operations.
Italian prosecutors alone initiated more than a dozen legal cases against search-and-rescue organizations operating in the Mediterranean. Three of the cases so far have been dismissed. The defendants' fates in the other cases remain uncertain.
Italian authorities have also gone to great lengths to monitor NGOs, using wiretaps and undercover agents to build cases against search-and-rescue teams from Save the Children, Médecins Sans Frontières, and Germany’s Jugend Retett, The Intercept reported in December.
In a turn of events befitting a movie script, Intercept reporters found the branch of Italy's law enforcement services surveilling the organizations was the anti-mafia prosecution division.
As large-scale investigations into Italian organized crime families wound down, Italian prosecutors turned their attention to what they viewed as another sort of Mafia: Libyan smuggling rings and the search-and-rescue NGOs that authorities view as facilitating their operations.
A 2013 amendment to Italy's anti-smuggling laws expanded prosecutors’ reach to international waters. Prosecutors used their new power to pursue people piloting migrant boats and the NGOs engaged in search-and-rescue – and to charge them both with human trafficking.
Four members of Jugend Retett are being tried in Sicily on charges of enabling illegal immigration, and Italian Prime Minister Giorgia Meloni – whose conservative coalition gained power last year vowing to cut migrant flows to Italy – asked to join as a party to the prosecution.
Her transportation minister is Matteo Salvini, whose political career as leader of the populist Five Star Movement rose on the back of the same conspiracy theories about NGOs in migrant smuggling. He now controls Italy's ports and coast guard.
In December, Meloni's government introduced new rules for search-and-rescue NGOs that forbid multiple rescues during a single mission. The government is also assigning distant disembarkation points with increased frequency, requiring rescue vessels to navigate up to four days away from their operational zones before returning.
“Last year, we carried out 16 missions a week, and we rescued a total of 3,050 people. If we were leaving after the first rescue, we would have rescued 1,030 people," said Juan Matias Gil, director of Médecins Sans Frontiéres' search and rescue operations. “This is the human cost of a decree that is only trying to minimize the time that we have in the SAR area.”
Greece also is under investigation for its surveillance practices. The European Parliament launched a committee to investigate how the Pegasus spyware, which was developed by Israel’s NSO Group, and similar surveillance software is being used in Europe, including in Greece, where a "Greek Watergate" scandal has erupted over spyware used against opposition figures and journalists.
Greek chief prosecutor Isidoros Ntogiakos issued a shock ruling last week: the independent Hellenic Authority for Communication Security and Privacy (ADAE) in charge of monitoring privacy issues in Greece is barred from auditing telecom companies to find out who is being surveilled by the Greek secret services.
Humanitarian workers see an alarming trend in the increasing barriers to transparency behind the wave of criminalization efforts.
"This is not necessarily a Greek problem, or even European problem. It is a worldwide problem. We can also see criminalization in Australia, the U.S., and other countries," said Inês Avelãs, head of advocacy and strategy at Fenix Humanitarian Legal Aid, which helped the Lesbos defendants.
"This is concerning not only because of the practical consequences it has on rescue missions," she said, "but because this leads to deaths.”
E.U. retreat from search-and-rescue leaves NGOs to fill the gap
As efforts to criminalize search-and-rescue NGOs intensify across the continent, the E.U. has systematically pulled back the operational zones covered by its own search-and-rescue vessels off the Libyan coast.
In 2018, Frontex – the sprawling agency with 1,900 employees and a budget of 754 million euros that polices the E.U.'s external borders – reduced its operational range to 24 nautical miles, down from 70 nautical miles, off the Italian coast.
That created a vacuum in the waters near Libya, where the highest concentration of migrant ships find themselves in situations of distress.
A year later, the E.U.'s Naval Force shut down Operation Sophia, withdrawing seven ships responsible for saving around 43,000 migrants since 2015. Two were redeployed the following year, but set the task of patrolling a zone off Libya's eastern coast where few ships depart. It's unclear what Frontex's new strategy aims to accomplish.
Human rights groups also point to the illegal pushback practices of Frontex and some of the E.U. border nations' forces. A 2021 analysis by the Guardian found over 2,000 deaths directly linked to E.U. pushback practices, highlighting the roles of Italian, Greek, Spanish, Maltese and Croatian authorities in particular.
"While many E.U. countries continue to support refugees and uphold European and international human rights commitments, violent pushbacks and serious human rights violations continue at EU borders," the Office of the U.N. High Commissioner for Refugees, or UNHCR, said last week.
Asked for comment during the press conference about the evidence of pushbacks conducted by Frontex, Leijtens pledged to end the practice, saying there should be "no discussion" about whether agents are executing their job professionally.
"Pushbacks by Frontex are not legal. They are forbidden," he said. "I'm responsible for the fact that my people don't participate in anything that causes pushbacks."
Search-and-rescue organizations, citing international laws that mandate the protection of people aboard boats in distress, say the E.U.'s retreat from these maritime humanitarian operations forces them to act.
Today, no search-and-rescue operations are active in the Aegean Sea, leaving the Greek Coast Guard, which has faced repeated accusations of performing illegal pushbacks of migrant boats, as the only force operating in one of the world's deadliest migrant routes.
Earlier this month, 21 organizations jointly expressed their "gravest concerns" about European governments obstructing aid for people in distress at sea.
"NGOs are already overstretched due to the absence of state-run search-and-rescue operations, and the decreased presence of rescue ships will inevitably result in more people tragically drowning at sea," the organizations said.
"What we need is not another politically motivated framework obstructing lifesaving search-and-rescue activities, but for E.U. member states to finally comply with existing international and maritime laws as well as guarantee operational space for civil search-and-rescue actors."
From boats to drones: the E.U.'s new strategy
While the E.U. may be pulling back its ships, a December investigation by Human Rights Watch revealed a new strategy: Frontex is carrying out aerial surveillance in cooperation with Libyan authorities. Frontex now operates three times more aircraft than ships, with six flown from bases in Malta and Italy.
In response to investigations by human rights organizations and journalists, Frontex has consistently denied any direct cooperation with Libyan authorities, instead saying it only provides them with alerts when migrant boats are in distress.
But HRW found that the intelligence collected by Frontex aircraft facilitated almost a third of Libyan forces' maritime interceptions of 32,400 people.
“Frontex’s rhetoric around saving lives remains tragically empty as long as the border agency doesn’t use the technology and information at its disposal to ensure that people are rescued promptly and can disembark at safe ports," said Judith Sunderland, HRW's associate Europe and Central Asia director.
Human rights advocates say the E.U. has essentially made itself complicit in Libya's human rights abuses through such cooperation. And while Frontex said its drone and plane reconnaissance saves lives, HRW said its analysis found there was no such "meaningful" correlation in the data.
Leijtens declined to comment directly on the agency's cooperation with Libyan authorities, but said fundamental human rights will be one of his guiding principles as head of the Frontex. "It is not either fundamental rights or border management. They go hand in hand," he said.
Rulings by the European Court of Human Rights determined European ships cannot intercept migrant boats for the purpose of returning passengers to Libya. The United Nations Convention on the Law of the Sea, which came into force in 1994, also stipulates that people rescued at sea must be taken to the nearest "place of safety," prohibiting their return to homelands where they could face torture or other abuses.
For boats first intercepted by Libyan authorities, no such rules apply.
"The strategy is an attempt by the EU to remove itself spatially, physically, and legally from its responsibilities," HRW said.
Susanne Jacoby, a spokesperson for the search and rescue alliance United4Rescue, which has three ships in the Mediterranean, called for an end to any cooperation with the Libyan Coast Guard. "Libya is not safe," she said. "In the detention camps there, people are tortured, raped, abused and enslaved."
E.U.'s shift toward externalizing migrant policy
The E.U. and Italy have invested heavily in the Libyan Coast Guard to prevent migrant departures towards European shores. Italy has supplied at least 12 ships to Libya and manages the ship's maintenance contracts.
An investigation released Wednesday by Lighthouse Reports, a nonprofit based in the Netherlands that leads complex transnational investigations among media outlets, said asylum seekers, including children, are being detained in unofficial jails for sometimes more than a day at a time below deck in passenger ships headed from Italy to Greece as part of illegal pushbacks by Italian authorities.
E.U. strategy documents show a focus on expanding migration policy well beyond European borders. Frontex, for instance, plans new missions in Senegal and Mauritania to prevent "irregular departures towards the Canary Islands."
European officials say they hope to reduce the need for people to flee to the continent. "Our main goal must be to prevent dangerous journeys in the first place by taking actions with countries of origin," said Johansson, the European commissioner for home affairs.
The approach raises questions, however, about whether the E.U. migration and asylum policies merely add to the complexity by shifting responsibility to other countries, where it also can be more difficult to keep track of how E.U. funding is spent.
The E.U. has long struggled to control the actions of its Libyan partners, for instance. In 2020, Italian prawn farmers reported being shot at by Libyan Coast Guard units equipped with European-provided weapons and gear. The prawn farmers said the Libyan units forced them from a stretch of shallow waters where they find expensive prawns served in the world's finest restaurants.
The Office of the U.N. High Commissioner for Human Rights, or OHCHR, and other organizations have documented serious abuses in Libya's treatment of migrants, including its detention centers. Germany announced last year it would halt its participation in the training of Libyan officials on grounds of unacceptable treatement of refugees, migrants and NGOs.
Johansson acknowledged the difficulties, saying migrants' living conditions in Libyan detention centers are "unacceptable" and the E.U. is working with the U.N., IOM, and African Union to help them relocate away from Libya.
"Our first priority is to save lives," she said.