International Reports
The magnitude of migrant and refugee flows via the Eastern Mediterranean route during 2015 which continued in lower numbers in 2016 marked a significant watershed for the European Union (EU). It was the first time the integrity and the resilience of the Dublin system and subsequently the Schengen area were so severely tested. Actually, the refugee crisis of 2015 was a repetition of the European debt crisis which erupted back in 2010. The common pattern in both cases was that the existing structures proved insufficient for crisis management or crisis prevention. In 2010, the eurozone approached collapse as the necessary tools for preventing or managing the crisis were not available. In 2015, when close to two million illegal migrants and refugees were detected at EU’s external borders, the Dublin system which had been put in place to safeguard freedom of movement in the Schengen area showed serious signs of cracking. In less than five years the EU was, for a second time, caught off guard as a crisis was developing and threatening its core.
The humanitarian aspect of providing protection to displaced people arriving to Europe’s shores from countries such as Syria, Afghanistan or Iraq was only one part of the crisis. The security aspect was equally important as the terrorist attacks in France, Belgium and Germany have raised alarms that extremists possibly used the migratory flows as a cover to cross from Turkey to Greece and from there to the rest of Europe following the Balkan route. The phenomenon of foreign fighters fell under the same umbrella. This aspect but also the immense pressure on national asylum systems, which undertook the task of managing hundreds of thousands of asylum applications and the economic burden to provide food and shelter to the refugees tested EU’s resilience like never before.
It was in this context that the EU and mainly Germany searched for solutions to a) improve burden sharing in managing the crisis and b) strengthen the protection of external borders and of the Schengen area. Initiatives like relocation (and resettlement) brought to the surface different views among member states concerning burden sharing which polarised and divided the Union. However, the management of the refugee crisis in the Aegean Sea (using the “hotspots approach”), the closure of the Balkan route and especially the signing of the EU-Turkey Statement in 18th March 2016 were the first steps in strengthening external borders’ protection. They laid the foundation for two further steps in this front: first, the transformation of Frontex to a European Border and Coast Guard (EBCG) and, second, the implementation of a revised Smart Borders package (including the new Entry/Exit System) alongside a strengthened Schengen Borders Code (SBC), considered the pillars of integrated border management.
The Closure of the Balkan Route and the EU-Turkey Statement
Today, it is indisputable that 2015 was the annus horribilis concerning migration and refugee flows to Europe. The arc of geopolitical instability in Europe’s neighborhood in the Middle East and North Africa (MENA) region, particularly the civil war in Syria, was the principal reason for the huge numbers of illegal migrants and refugees which flooded the northeastern Greek islands in the Aegean Sea but also Italy. According to data collected by Frontex, 1,822,177 illegal border crossings were detected in EU’s external borders. However, 885,386 of these detections took place on the Eastern Mediterranean route.
Greece became the focus of international media once again as families of Syrians and of other nationalities crossed from Turkey to the Eastern Aegean islands. However, there was no time for focusing on strengthening EU’s external borders right away. Initially, the management of migratory flows had to be dealt with and the “hotspot approach” for the identification and registration of people was established. However, the bad state of Greek administration, combined with a) the absorption of the new coalition government in endless negotiations with European institutions and the International Monetary Fund on its economic programme and b) the profound delays in crafting a solid EU response, had as a consequence the loss of crucial time. Hundreds of thousands of migrants started their trip from Turkey and the Greek islands to the “paradise” of Germany, Austria or Sweden – just to name few of the favorable destinations of Syrian, Afghan or Iraqi refugees who wanted a better life away from their war-torn countries. The “Balkan route” was the main passage to Central and Northern Europe as Greece seemed unable to control who was coming in or going out of its territory.
This situation put a heavy strain on countries such as the Former Yugoslav Republic of Macedonia (FYROM), Serbia, Slovenia or Croatia. When Hungary decided to close its borders to prevent any more flows, the burden for FYROM and Serbia, which are not EU members, became very heavy. However, according to EU diplomats who followed developments at that time very closely, it was not until October or November 2015 that the EU realised the magnitude of the crisis. The Western Balkans Summit in Brussels at the end of October 2015 was the first sign that something had to be done urgently in order to manage the uncontrollable flows. By that time, the problem was not only humanitarian. Its security aspect was becoming more and more obvious and the deadly terrorists attacks in Paris on November 2015 was the crunch time for European decision makers as the concern that foreign fighters and Islamic extremists were using the migratory flows to move in and out of Europe was becoming excessively high.
It had become obvious that two things were needed for the situation to be reversed. The first was the completion of a deal with Turkey, a key country from where most of illegal migrants and refugees were crossing to Greece. The second was the need to seal the Balkan route as Greece was unable to properly register migrants entering its territory and then crossing to the mainland, reaching its northern part and continuing their trip to the rest of Europe. It took four months of feverish and behind the scenes negotiations to achieve a deal with Ankara, culminating in the EU-Turkey Statement of March 2016.
The agreement must be considered successful if official data is taken under consideration. There has been a dramatic fall in the number of crossings in the Aegean since the EU-Turkey Statement in March 2016, as more than 150,000 crossings were recorded during the first three months of 2016 compared to less than 22,000 in the remaining months of the year. Although each loss of life is highly regrettable, “only” 68 fatalities and missing persons have been recorded in the Aegean Sea since the EU-Turkey Statement. This represents a substantial decline in the loss of life, as during the same period in 2015 the total number was close to 600.
Nevertheless, shortcomings still exist. The five Greek hotspots remain overcrowded, the government has not yet formally appointed the hotspot coordinators and Standard Operating Procedures are still pending. Additionally, the detention capacity in the hotspots needs to be increased in order to strengthen security and speed up returns to Turkey. Furthermore, the Turkish Coast Guard is actively patrolling in the Eastern Aegean waters. According to data from the Turkish Coast Guard website, during the period from 1 January to 17 February 2017, 23 irregular migrants’ incidents took place and 716 people were saved, while four smugglers were apprehended.
The Challenges of Greek-Turkish Cooperation
Angela Merkel was instrumental in engaging Turkey and its mercurial President Recep Tayyip Erdogan but also in creating, alongside European Council’s President Donald Tusk, the necessary consensus among EU’s member states for the conclusion of the EU-Turkey Statement. However, the success of this agreement required, as a sine qua non, the cooperation between Athens and Ankara. This is a very demanding task, as the relevant stakeholders have to include in their calculations very tricky and complicated Greek-Turkish relations. These have been overburdened during the last 40 years by Ankara’s continuous revisionist stance of the Aegean Sea legal status.
The decision of the Greek Supreme Court, on 26 January 2017, against the extradition of eight Turkish military personnel sought by Ankara over July’s 2015 attempted coup on the basis that they may not have a fair trial in Turkey is the latest episode in Greek-Turkish affairs. Turkish Foreign Minister Mevlut Cavusoglu stated a few days later that his country might reconsider its overall relations with Greece, mentioning in particular the bilateral readmission protocol which is one of the pillars of the EU-Turkey Statement as there is no EU-Turkey readmission agreement. The bilateral protocol is needed so that irregular migrants and refugees are returned to Turkey and for Turkey to control its maritime boundaries with Greece, host millions of refugees on its soil and resettle Syrians to the EU on the “1 Syrian for 1 Syrian” formula.
The EU should take great care in managing the bilateral Greek-Turkish aspect of its dealings with Turkey. The deterioration of bilateral affairs could endanger the strategy to manage and control EU’s external borders. The Greek Supreme Court decision was followed by a standoff between Greek and Turkish patrol boats and warships close to the Imia islets, which belong to Greece, in the Southeastern Aegean Sea. Turkey considers the sovereignty of these islets as “undetermined” according to its “gray zones theory”. It should be reminded that before the EU-Turkey Statement was signed, Greece, Turkey and Germany agreed to the presence of a small NATO maritime force in the Aegean but Turkey has pushed for very strict rules, questioning even the names of Greek islands, while denying full access to certain areas for NATO ships and calling repeatedly for the withdrawal of the maritime force. On the basis of private conversations held with European diplomats, it is obvious to this writer that most of them are now aware of the sensitivities in Greek-Turkish relations and the danger it could entail for the derailment of EU-Turkey cooperation.
The Protection of EU’s External Borders in the Eastern Mediterranean Route and its Significance for the Schengen System
The preparation and signing of the EU-Turkey Statement, combined with the closure of the Balkan route, could only temporarily alleviate the pressure from migratory flows. These initiatives were not enough to cover the serious deficiencies concerning the protection of EU’s external borders in the Aegean Sea. The huge numbers of people crossing the Aegean Sea under very adverse circumstances led, in December 2015, to the replacement of Frontex’s Joint Operation “Poseidon Sea” with “Poseidon Rapid Intervention”, providing Greece with additional technical assistance to strengthen border surveillance, identification and registration of migrants and refugees. The results have been mixed as Frontex could not operate in Turkish waters and at the same time the “background calls” by certain EU officials for joint Greek-Turkish patrols were wishful thinking because of the aforementioned tensions between the two NATO allies.
It was in this context that after Angela Merkel’s visit in Turkey on 8 February 2016, she and then Prime Minister Ahmet Davutoglu agreed to propose to NATO the launch of a joint operation to patrol Aegean waters and help Greece and Turkey. Athens was initially very cautious but in the end agreed to the idea during NATO’s Defense Ministerial a few days later. Greek and Turkish warships along with third countries’ warships participating in the Standing Naval Maritime Group 2 (SNMG2), under a German flagship, started patrolling Aegean waters. In March 2016, NATO and Frontex agreed on a common understanding to coordinate their actions and in April 2016 a Frontex liaison officer was deployed on NATO’s flagship. In July 2016, Standard Operating Procedures were signed between EBCG and NATO Maritime Command, leading to a deepened cooperation in the form of a common situational picture, early warning, surveillance activities and sharing of operational information with the Greek and Turkish Coast Guards. The Alliance has also provided equipment to EBCG to access its regional restricted network and step up information exchange.
It was, however, clear that Turkey would not let its bilateral disagreements with Greece on Aegean’s legal status become hostage to NATO’s Aegean activity (as the operation was “codified”). While Greek military officials were hoping for the biggest possible expansion of the operation, their Turkish counterparts limited their cooperation to just two out of the four operational areas (near the islands of Lesvos and Chios). Furthermore, third countries’ ships have slowly withdrawn and NATO’s operation, although still active, is losing ground.
Under these circumstances, it soon became obvious that Frontex under its old format had to be transformed to a more robust EBCG with a wider mandate in order to be able to intervene in emergency circumstances and to cooperate with third countries. However, this alone was not sufficient to promote the strengthening of external borders and the integrity of the Schengen area. In February 2016, the European Commission adopted a Report as a result of an unannounced evaluation visit which took place in mid-November 2015 at certain points of the land and sea borders of Greece. The Report concluded that there were “serious deficiencies” in the carrying of the external borders’ control in Greece. Recom-mendations for remedial action were adopted by the Council on 12 February 2016. Despite Greece’s stated disagreement with the assessment of the evaluation Report, the Greek authorities presented an Action Plan to remedy the deficiencies in March 2016 and the process is moving smoothly forward in most aspects.
The remedy of the deficiencies remains crucial as a certain number of EU member states still have temporary internal border controls in place because of exceptional circumstances (Austria, Germany, Denmark, Sweden, plus Norway which is not an EU member state but an associate member in the Schengen area), especially to avoid secondary movements. The terrorist attacks in France and Belgium and the fact that some of the perpetrators have been to or have passed from Greece while planning them have brought to the surface the urgent need to strengthen external border controls. In the Conclusions of
the Justice and Home Affairs (JHA) Council of the EU on 20 November 2015, just one week after the heinous terrorist attacks in Paris on 13 November 2015, the member states undertook, among others, to implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement, to strengthen the security checks in the context of the current migration crisis, to update proposals on Smart Borders and to present proposals for the revision of the SBC. This debate produced, as a result, the proposals for the creation of an EBCG, presented in December 2015 and for the revision of the Smart Borders package, presented in April 2016.
The “Twin Pillar” of European Border and Coast Guard and Smart Borders
There is no doubt that an effective protection of the EU’s external borders is fundamental to the well functioning of free movement within the EU. In September 2015, the European Council called for stronger controls at those borders, including through additional resources for Frontex, EASO and Europol. In December 2015, it further highlighted the need to ensure systematic security checks at external borders with relevant databases and the use of new technologies.
One of the most visible proposals concerning the strengthening of external borders was presented by the European Commission in December 2015 on the revision and revamp of Frontex’s mandate. The Commission’s far-reaching proposal formed the basis of the Regulation (EU) 2016/1624 which establishes the EBCG Agency. According to the First Report on the operationalisation of the EBCG, published by the European Commission on 25 January 2017, the Agency provides the biggest operational support in the frontline states member states that it has provided so far, as more than 1,550 members of the EBCG are deployed in regular joint operations at EU’s external borders (760 in Greece, 600 in Italy, 130 in Bulgaria, 70 in Western Balkans).
The Regulation includes some very interesting provisions which should be analysed further. First, the EBCG will have “shared responsibility” with EU member states in the implementation of European integrated border management. As the authors of a report on the EBCG recently wrote, “for the first time, a piece of EU secondary legislation provides a definition of what ‘integrated border management’ is”. It is actually comprised of three tasks: a) border control, b) search and rescue operations for persons in distress at sea and c) analysis of the risks for internal security and analysis of the threats that may affect the functioning or security of the external borders.
Second, the Regulation converts Frontex into a European returns agency, as it can conduct joint return operations with national authorities aimed at expelling or removing illegal migrants, including the acquisition of travel documents. This issue is interlinked with the emphasis placed in the EBCG on working with third countries in the field of border management, including by deploying liaison officers to third countries or launching joint operations on EU’s territory or on the territory of third countries. EBCG is currently revising all the existing bilateral working arrangements with the Western Balkans countries, Turkey et al. in line with the new mandate. The Commission adopted on 22 November 2016 a model status agreement which serves as a blueprint agreement with third countries. Two priority countries were selected, Serbia and FYROM. However, cooperation with third countries does not exist in a vacuum. It involves interactions with third countries of strategic importance and exerting pressure on them may be counterproductive in concrete terms.
Third and most important, the Regulation gives to the EBCG a new competence on conducting vulnerability assessments of the member states’ readiness to face challenges at their external borders. This competence should be viewed though in direct connection with the right of the Agency to intervene in a member state. The vulnerability assessment will help to identify measures to be taken and make recommendations to the relevant member state. Furthermore, the assessment by the EBCG will feed into the evaluation carried out in the scope of the so-called Schengen evaluation mechanism of the SBC.
In a case where a member state does not follow these recommendations, the Agency is granted a “right to intervene”, especially when urgent action is needed when the member state is facing serious deficiencies in addressing migration pressures and is not able to carry out effective border controls, putting the functioning of the Schengen area in jeopardy. However, the initial Commission proposal, which was giving responsibility for the management of the external borders to the EBCG, was significantly watered down during the negotiations for the Regulation’s adoption. The Commission is no longer in the driver’s seat. It will now identify and propose to the Council the measures to be implemented by the EBCG and require the member state concerned to cooperate. It goes without saying that the power to take this decision is now in the hands of the Council because of the politically sensitive nature of the measures to be decided, often touching on national executive and enforcement powers. This means that the EBCG will still be dependent on EU member states’ consent. It has to be also noted that decisions on conducting vulnerability assessments or on corrective measures will need to be adopted by a majority of two-thirds or EBCG’s Management Board.
The second pillar of the EU’s strategy to strengthen external borders to ensure proper freedom of movement and security in the Schengen area is comprised of two initiatives. One was the proposal for amending Regulation No. 562/2006 (SBC) as regards the reinforcement of checks against relevant databases at external borders. Its aim was to introduce mandatory systematic checks for persons enjoying the right of free movement under EU law (EU citizens and members of their families who are not EU citizens) who cross external land, sea and air borders. Those persons would be checked against databases, such as the Interpol stolen and lost documents database (SLTD) and Schengen Information System (SIS), in order to verify their identity and that they do not constitute a threat to public order and internal security. The proposal stresses the need to verify biometric identifiers in passports, such as fingerprints and also obliges checks of all third-country nationals who are leaving the EU against relevant databases to ensure they pose no security threat.
Furthermore, in April 2016, the Commission published its Smart Borders package, including a “Communication on Stronger and Smarter Information Systems for Borders and Security” and a “Regulation for the Establishment of an Entry-Exit System”. The proposed amendment to the SBC in order to integrate the technical changes needed for the Entry-Exit system was mentioned above. In general, the Smart Borders package aims to help member states deal with increasing traveller flows, without necessarily increasing the number of body guards and to promote mobility between the Schengen area and third countries in a secure environment, while contributing to the fight against terrorism and serious crime.
The Commission has insisted that the package is not a direct response to the refugee crisis. The purpose is to make better use of the opportunities offered by IT systems and technologies. It refers to three existing systems: Eurodac (to deal with the administration of asylum), VIS (for managing visa applications) and SIS (for sharing information on persons and objects for which an alert has been created). The new Entry-Exit System (EES) is planned to be established by 2020. EES will apply to third country nationals, both visa-required and visa-exempt travellers, admitted for a short stay (maximum 90 days in any 180 days period). All systems, with the exception of SIS, target third-country nationals.
Conclusion
The refugee and migrant crisis has fundamentally tested the added value and legitimacy of the EU. The controversial EU-Turkey Statement of March 2016 to send refugees arriving in Greece back to Turkey has raised concerns for many stakeholders. Realpolitik prevailed as divisions among member states (especially between those from Western Europe and those from Central and Eastern Europe, specifically the “Visegrád Four”) challenged solidarity and respect for European values. This has been the reason that the relocation scheme championed by the European Commission and Germany is still not functioning as its architects envisioned despite repeated calls. However, if this scheme does not work, the implementation of the EU-Turkey Statement will be in danger sooner than later, especially if migratory flows start rising again.
The Dublin system came under severe pressure as did external border management. Meanwhile, as the influx of refugees continues mainly through the central Mediterranean route and Italy, challenges remain. However, the main question is whether the Union can bring about more effective management of the migration crisis and offer reassurances to its citizens that it can provide security against terrorism and other threats. In this regard, the amendments to the Dublin system currently discussed in order to create a Common European Asylum System (CEAS) are of outmost importance in order to restore the proper balance between external borders management and asylum.
It seems though that the atmosphere on certain European capitals, mainly in Berlin and Paris, is focused primarily on preventive rather than inclusive measures concerning migration. The recent Franco-German Note entitled “A crisis-resistant Common European Asylum System” includes very tough provisions as it actually proposes an indirect “Australian model” by sending people back in third countries with minimum legal guarantees. It appears that the European debate on migration, asylum and border management will stay with us for a long time.
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Angelos Athanasopoulos is foreign affairs editor for the Greek daily newspaper To Vima.
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