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Europe’s Refugee “Crises” and the Biopolitics of Risk
Published online by Cambridge University Press: 20 July 2023
Abstract
This paper provides an analysis of the legal and policy foundations of the different approaches adopted by the European Union (EU) in relation to the 2015/2016 and 2022 refugee “crises”. Its main objective is to show how a risk-based biopolitical framework can bridge the gap between EU institutional narratives and the critique of Europe’s racialised governance schemes. The two “crises” have been largely shaped by a perceived need to manage risk, yet this has produced very different institutional responses, in ways that concealed their racialised dimension. Analysing how risk has been understood in the two contexts, the paper shows how their legal and policy foundations (re-)produce a racialised differential scheme. Amidst ongoing debates on reforming EU migration and asylum law, the paper also shows how the current proposals further consolidate this scheme.
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References
1 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L 212 (Temporary Protection Directive).
2 Temporary Protection Directive, Art 2(a).
3 “Crisis” is used in this paper with quotation marks to refer to the institutional understanding of each of the two contexts as a “crisis”. The choice of referring to refugee “crisis” instead of migration “crisis” reflects our intention to avoid a potential misreading of implying that the persons concerned by the two “crises” do not deserve international protection. While focusing mainly on how the 2015/2016 “crisis” relates to the 2022 activation of the TPD, we acknowledge that other “crisis” situations prior to 2022 can be also approached from a similar perspective. However, the 2015/2016 “crisis” deserves special attention, as many of the emergency mechanisms put in place then have had an important impact on the current proposals of reforming EU migration and asylum law.
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6 ET Achiume, “Racial borders” (2021) 100(3) Georgetown Law Journal 445, 467; Jackson Sow, supra, note 4; Costello and Foster, supra, note 6.
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8 M Foucault, The Birth of Biopolitics: Lectures at the College de France 1978–1979 (London, Palgrave Macmillan 2008); M Foucault, Society Must Be Defended: Lectures at the College de France 1975–1976 (London, Palgrave Macmillan 2003).
9 Foucault, Society, supra, note 8, 249.
10 Sovereignty, discipline and biopower (including biopolitics, the form of government that governs populations through biopower) constitute Foucault’s “triangle of power”, whereby each form emerged in different historical periods of modernity without, however, replacing each other. See M Dean, Governmentality: Power and Rule in Modern Society (Thousand Oaks, CA, Sage 2010).
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13 JW Crampton, supra, note 12; M Tazzioli, “Governing migrant mobility through mobility: containment and dispersal at the internal frontiers of Europe” (2020) 38(1) Environment and Planning C: Politics and Space 3.
14 D Lorenzini, “Biopolitics in the Time of Coronavirus” (2021) 47(Suppl 2) Critical Inquiry S40.
15 M Foucault, History of Sexuality, an Introduction (New York, Vintage 1985); Foucault, supra, note 8.
16 Achiume, supra, note 6, 648.
17 ibid.
18 Costello and Foster, supra, note 4.
19 Jackson Sow, supra, note 4.
20 Crampton, supra, note 12; Btihaj, supra, note 11.
21 On the importance of statistics and other forms of knowledge in biopolitics, see Foucault, Birth of Biopolitics, supra, note 8. See also C Ruelle, “Population, milieu et normes – Note sur l’enracinement biologique de la biopolitique de Foucault” (2005) 22 Labyrinthe 27.
22 E Guild, “From Persecution to Management of Populations: Governmentality and the Common European Asylum System”, Nijmegen Migration Law Working Papers Series (2012) 3; Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L 180 (Asylum Procedures Directive), Arts 31(8) and 33. In addition to these criteria and grounds, it is also relevant to consider the required degree of “individuation” in the examination of asylum applications, which generally leads to restrictive approaches to asylum seekers as a group. C Costello, The Human Rights of Migrants and Refugees in European Law (Oxford, Oxford University Press 2016).
23 Guild, supra, note 22, 5.
24 Asylum Procedures Directive, Arts 31(8) and 33.
25 Once registered, asylum seekers have a set of rights, the realisation of which relies on public resources. See Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L 180 (Reception Directive).
26 Temporary Protection Directive, Art 2(a).
27 Unless explicitly terminated, temporary protection is automatically renewed for six months and up to one year (two six-month extensions). If the reasons for temporary protection persist, then a Member State can request the extension of the TPD for another year (Temporary Protection Directive, Art 4).
28 Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] OJ L 71 (Council Decision) Art 2. Member States must also provide “adequate protection” – TPD or another status under national law – to permanent residents of Ukraine who are unable to return to their country of origin. There is no obligation to grant protection to short-term residents, such as exchange students, although Member States can choose to do so.
29 Guild, supra, note 22. See also E Guild, “Conflicting identities and securitisation in refugee law: lessons from the EU” in S Kneebone et al (eds), Refugee Protection and the Role of Law: Conflicting Identities (Abingdon, Routledge 2014) p 151.
30 EU Commission, “A European Agenda on Migration”, COM(2015) 240, 13 May 2015.
31 D Davitti, “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’” (2018) 29 European Journal of International Law 1173, 1179. See also D Ghezelbash et al, “Securitization of search and rescue at sea: the response to boat migration in the Mediterranean and offshore Australia” (2018) 67 International & Comparative Law Quarterly 315, 351.
32 Security is used here in the sense of a discursive process of “securitisation” – in line with the Copenhagen School – through which actors claim the existence of a threat associated with migration and the possibility of taking extraordinary measures to deal with such a threat. Such a process is also part of a “security apparatus” in the Foucauldian sense as it inscribes itself within a scheme of securing the lives of deserving groups at the expense of other groups perceived as dangerous. On the theory of securitisation of the Copenhagen School, see B Buzan et al, Security: A New Framework for Analysis (Boulder, CO, Lynne Rienner Publishers 1998); SJ Baele and CO Sterck, “Diagnosing the securitisation of immigration at the EU level: a new method for stronger empirical claims” (2015) 63 Political Studies 1120, 1139.
33 EU Commission, supra, note 30, 4 and Annex (those “in clear need of international protection” conceived as falling under relocation and resettlement schemes).
34 Ibid, 6 (referring to “a robust fight for irregular migration”).
35 VM Lax, “Must EU Borders Have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection to Refugees” (2008) 10(3) European Journal of Migration and Law 315.
36 Case C-638/16 PPU, X and X v Etat Belge, ECLI:EU:C:2017:173.
37 “Asylum and first time asylum applicants – annual aggregated data” (Eurostat Data Browser, 2022), <https://ec.europa.eu/eurostat/databrowser/view/tps00191/default/table?lang=en> (last accessed 10 December 2022).
38 See “Missing Migrants Project” (International Organization for Migration, 2022), <https://missingmigrants.iom.int/ > (last accessed 29 May 2023).
39 On securitisation, see supra, note 32.
40 European Council, Press Release, EU–Turkey Statement, 18 March 2016 <http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement> (last accessed 10 December 2022); M Akkerman, “Expanding the fortress: the policies, the profiteers and the people shaped by EU’s border externalisation programme” (The Transnational Institute Report, May 2018), 34 <https://www.tni.org/en/publication/expanding-the-fortress> (last accessed 10 December 2022). See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (European Commission),The Global Approach to Migration and Mobility, /*COM/2011/0743 final*/. EC [2011]; Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank on establishing a new partnership framework with third countries under the European Agenda on Migration, 7 June 2016, COM/2016/0385 final, EC [2016].
41 M Savino, “Refashioning resettlement: from border externalization to legal pathways for asylum” in S Carrera et al (eds), EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes (Leiden, Brill Nijhoff 2018) pp 81–104. For other critiques of the EU–Turkey Statement, see O Ulusoy and B Hemme, “Situation of readmitted migrants and refugees from Greece to Turkey under the EU–Turkey statement” (2017) 15 VU Amsterdam Migration Law Series; M Gkliati, “The Application of the EU–Turkey Agreement: A Critical Analysis of the Decisions of the Greek Appeals Committee” (2017) 10 European Journal of Legal Studies 81.
42 Valletta Summit on Migration, Action Plan, 11–12 November 2015 <https://www.consilium.europa.eu/media/21839/action_plan_en.pdf> (last accessed 10 December 2022); European Commission, “Factsheet – Global Europe: Neighbourhood, Development and International Cooperation Instrument” (9 June 2021) <https://international-partnerships.ec.europa.eu/funding/funding-instruments/global-europe-neighbourhood-development-and-international-cooperation-instrument_en> (last accessed 10 December 2022).
43 European Council on Refugees and Exiles, “The Implementation of the Hotspots in Italy and Greece. A Study” (2016) <https://www.ecre.org/wp-content/uploads/2016/12/HOTSPOTS-Report-5.12.2016.pdf> (last accessed 10 December 2022). See also G Campesi, “Seeking asylum in times of crisis: reception, confinement, and detention at Europe’s southern border” (2018) 37(1) Refugee Survey Quarterly 44, 70.
44 The main legal pathway provided is resettlement. The procedure, however, relies on the cooperation of multiple actors – such as domestic authorities in the transit and host states – and the critical participation of UNHCR. Subject to a lengthy and complicated procedure, a few people eventually resettled. See Savino, supra, note 41.
45 Council Decision, supra, note 28.
46 For these reasons, the European Commission initiated legal proceedings against Hungary, Poland and the Czech Republic. See Court of Justice of the European Union, Judgment of 2 April 2020, Joined Cases C- 715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, ECLI:EU:C:2020:257.
47 See UNHCR, Operational Data Portal, “Ukraine Refugee Situation” <https://data2.unhcr.org/en/situations/ukraine> (last accessed 29 May 2023).
48 Temporary Protection Directive, Art 28(1).
49 The visa-free travel was granted in 2017 for a period of a maximum 90 days within any 180-day period. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders [2016] OJ L 77 (Schengen Borders Code), Art 6(1).
50 Achiume, supra, note 6, 470.
51 ibid, 469. See also D Bigo and E Guild, “Policing at a Distance: Schengen Visa Policies” in D Bigo and E Guild (eds), Controlling Frontiers: Free Movement Into and Within Europe (Abingdon, Routledge 2005).
52 Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (codification) PE/50/2018/REV/1.
53 M Samers, “An Emerging Geopolitics of Illegal Immigration in the European Union” (2004) 6 European Journal of Migration and Law 27, 32; Costello, supra, note 22, 67.
54 Samers, supra, note 53.
55 Achiume, supra, note 6, 468. M Tesfahuney, “Mobility, racism and geopolitics” (1998) 17(5) Political Geography 499.
56 F Mégret, “The Contingency of International Migration Law: ‘Freedom of Movement’, Race, and Imperial Legacies” in I Venzke and KJ Heller (eds), Contingency in International Law: On the Possibility of Different Legal Histories (Oxford, Oxford University Press 2021); Achiume, supra, note 6.
57 Parliament Briefing, supra, note 40. This is probably also something that motivated the Council decision not to apply Art 11 of the TPD, which suggests that a “take-back” procedure would be in order if the person was granted temporary protection in a Member State but “remains on, or, seeks to enter without authorisation onto, the territory of another Member State” (emphasis added).
58 M Pronczuk and R Maclean, “Africans Say Ukrainian Authorities Hindered Them from Fleeing” (New York Times, 1 March 2022) <https://www.nytimes.com/2022/03/01/world/europe/ukraine-refugee-discrimination.html> (last accessed 9 December 2022); A-F Rotman “They Called Ukraine Home. But They Faced Violence and Racism When They Tried to Flee” (Time, 1 March 2022) <https://time.com/6153276/ukraine-refugees-racism/> (last accessed 9 December 2022); W Nattrass, “Roma refugees from Ukraine face Czech xenophobia” (EU Observer, 17 May 2022), <https://euobserver.com/world/154968> (last accessed 10 December 2022); S Ellena and V Makszimov, “Faced with discrimination, Ukrainian Roma refugees are going home” (Euractiv, 14 April 2022) <https://www.euractiv.com/section/non-discrimination/news/faced-with-discrimination-ukrainian-roma-refugees-are-going-home/> (last accessed 10 December 2022).
59 Council Decision, supra, note 28, Preamble, para 13.
60 The Parliament has agreed on partially reforming EU migration and asylum law until the end of the present political cycle, in April 2024. Therefore, not all of the proposals are moving forward equally. For example, the Parliament has opposed the force majeure concept and has proposed other important modifications of the Proposed Crisis Regulation. See European Parliament, Committee on Civil Liberties, Justice and Home Affairs, “Report on the proposal for a regulation of the European Parliament and of the Council addressing situations of crisis in the field of migration and asylum,” Report A9-0127/2023, 7 April 2023 <https://www.europarl.europa.eu/doceo/document/A-9-2023-0127_EN.html> (last accessed 29 March 2023).
61 European Commission, “Crisis Instrument: Proposal for a Regulation Addressing Situations of Crisis and Force Majeure in the Field of Migration and Asylum” (2020) 2020/0277 (Proposed Crisis Regulation).
62 European Commission, Proposal for a Regulation of the European Parliament and of the Council addressing situations of instrumentalisation in the field of migration and asylum, COM/2021/890 final, 14 December 2021 (Proposed Instrumentalisation Regulation).
63 European Commission, “Screening Regulation: Proposal for a Regulation Introducing a Screening of Third Country Nationals at the External Borders” (2020) 278.
64 Proposed Crisis Regulation, supra, note 61, Art 10.
65 Proposed Crisis Regulation, supra, note 61, Art 1(2).
66 European Commission, “Proposal for a Regulation of the European Parliament and of the Council on Asylum and Migration Management and Amending Council Directive (EC) 2003/109 and the Proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]” (610) Final 2020, Art 55.
67 In the amendments proposed by the Parliament, the Proposed Screening Regulation is still directly connected to the Proposed Crisis Regulation. See European Parliament, Committee on Civil Liberties, Justice and Home Affairs, “Report on the proposal for a regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817” A9-0149/2023, 14 April 2023.
68 For example, border detention, which results from the “multidimensional expansion of border procedures”; see M Mouzourakis, “More laws, less law: the European Union’s New Pact on Migration and Asylum and the fragmentation of ‘asylum seeker’ status” (2020) 26 European Law Journal 171.
69 Proposed Crisis Regulation, supra, note 61.
70 European Parliament, Committee on Civil Liberties, Justice and Home Affairs, “Report on the proposal for a regulation of the European Parliament and of the Council addressing situations of crisis in the field of migration and asylum,” Report A9-0127/2023, 7 April 2023 <https://www.europarl.europa.eu/doceo/document/A-9-2023-0127_EN.html> (last accessed 29 March 2023).
71 Proposed Instrumentalisation Regulation, supra, note 62.
72 ibid.
73 ECRE, “ECRE Reaction: No Majority for Instrumentalisation Regulation” (2022) <https://ecre.org/ecre-reaction-no-majority-for-instrumentalisation-regulation/> (last accessed 29 May 2023).