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EU/Libya: Full steam ahead, without pausing to think

28 March 2012

On 2 June 2005, the Justice and Home Affairs Council discussed draft conclusions prepared by the Luxembourg Presidency on "initiating dialogue and cooperation with Libya on migration issues", which follows on from the technical mission to Libya on illegal migration that was carried out from 28 November to 6 December 2004 (whose report was presented to COREPER on 6 April 2005 and to the JHA Council on 14 April).

The process through which the Council intends to develop this cooperation appears to be pre-ordained, and shows an unwillingness to take into account any findings or concerns arising from its missions and fact-finding exercises which contrast with the assessment, shared by the Commission and Council:

"that there is a need for a comprehensive and integrated approach to migration in the Mediterranean which encompasses dialogue and cooperation with Libya, other Mediterranean partners and main African countries of origin and transit".

The draft conclusions call upon Member States and the Commission to "swiftly" implement a number of measures, which are divided into "measures to intensify cooperation within the EU", "suggestions for exploratory discussions with Libya" in the short and medium term, and "suggestions for dialogue and cooperation with other African countries".

Actions to be adopted within the EU include reinforcing "systematic operational coordination" between "national services responsible" for sea borders, the presentation of "concrete operational actions at sea" and "participation in upcoming joint sea operations". The ad hoc Sea Borders Centre is invited to develop "common operations in the Mediterranean Sea" and to consider setting up a temporary EU Task Force for which Member States could make "vessels and aircraft" available. A Risk Assessment Report on Africa is to be "swiftly" completed, Immigration Liaison Officers (ILOs) are to be sent to Libya, the ILO Network is to be strengthened through the introduction of exchange of information and working rules for ILOs posted to Libya, and the use of the ICONet as a means to exchange information is encouraged. Training for border control services on issues including asylum is to be reinforced, ways of assisting countries affected by "sudden arrivals of migrants" are to be explored, as are best practices regarding the "acquisition of documents and removal of illegal immigrants", Head of Delegation reports must be drawn up for the main African countries of origin, and the scope for organising a mission to sub-Saharan countries such as Niger to look at ways of supporting these countries in managing their migratory flows must be considered.

With relation to short-term dialogue with Libya, they should focus on "short-term action aimed at preventing further loss of life at sea", training programmes on issues including "basic external border controls, illegal immigration, asylum and human rights issues", organising visits to Member States by Libyan "decision-makers and practitioners" involved in border controls to explain the functioning of the EU, and encouraging Libya to take part in operational initiatives under the ARGO programme. Other suggestions include carrying out a "joint risk analysis on illegal migration towards Libya and the EU", defining a "search and rescue area for Libya" and to set up arrangements to save lives, exploring the possible avenues for intensified cooperation and capacity building in relation to migration management and the protection of refugees in association with UNHCR, and providing assistance for voluntary repatriations and to return failed asylum seekers to their countries of origin. In the medium term, the draft conclusion suggest strengthening the legal framework and promoting administrative coordination in a number of areas such as visas, entry conditions, residence permits, asylum and document security, to improve migration management, as well as launching a project to strengthen border controls at Tripoli Airport, and defining operational arrangements to prevent the smuggling and trafficking of illegal migrants.

Dialogue with the main countries of origin of migrants arriving in the EU through Libya or other Maghreb countries is envisaged, aimed at developing cooperation with them in a bilateral or multilateral framework, and through an intensification of African Union-EU discussions.

An important aspect of the draft Conclusions is the attempt to mystify the truth. Accordingly, it suggests that cooperation between the EU and Libya on immigration is motivated by humanitarian concerns, namely to prevent loss of life in the Mediterranean, and to promote respect for human rights and refugee protection. There are incessant references to the need to prevent "loss of life", "humanitarian disasters" and to "human tragedies", which are described as being the result of "insufficiently managed migration flows". The fact that such "tragedies" only became commonplace after the adoption of restrictive immigration policies by the EU and by its Member States' governments, which force would-be migrants to seek alternative, illegal, and often life-threatening ways to travel to their destinations, which in turn results in the creation of increasingly profitable networks to smuggle people across borders, does not appear to form part of the equation. Likewise, it also seems hypocritical for the EU to present cooperation with Libya as an exercise that will help to promote respect for refugee protection and human rights in Africa. The implementation of a so-called "comprehensive and integrated approach to migration" which it promotes, has already been underway in the EU for over a decade, and has resulted in the deterioration of human rights standards (ill-treatment and inhumane conditions in detention centres, arbitrary detentions, violations of the non-refoulement principle, and a reduction of the impact of anti-discrimination principles and human rights for foreigners in general, due to the criminalisation of "economic migrants") in its Member States. With regards to asylum, the same process has led to the progressive restriction of asylum as it was previously recognised, by undermining the notion that asylum claims must be examined individually (thus, concepts such as "safe third countries" and the obligation to file asylum claims in the first available country, have been introduced) to allow the fast-track rejection of "manifestly unfounded" applications.

The EU is unwilling to re-evaluate any of its key assumptions as a result of its dialogue with Libya and other African countries, and this is instructive of its understanding of the process. It aims to inform Libya (and other countries) of its migration policy, and expects them to accept it in an unquestioning manner. Rather than a dialogue, there seems to be one-way traffic, and the emphasis on the "swiftness" with which actions are to be adopted is also indicative of this. Thus, the technical mission's report was littered with comments such as "there seems to exist little understanding of the need for a strategic approach", or expressions indicating surprise for the fact that Libyan authorities did not consider the networks facilitating illegal immigration to be organised crime syndicates. In relation to the issue of asylum, the Technical report pointed out that the Libyan authorities were reluctant to establish a clear distinction between asylum seekers and economic migrants, reportedly due to fears that such a distinction may "push an important part of the economic illegal migrant population to claim for international protection" which, in turn, "would result in problems for processing a large number of unfounded applications". Within the EU, this approach has resulted in a concerted attack on asylum rights in several member states, and it is significant that it was justified on the basis of the submission of large numbers of unfounded applications by "economic" migrants. Nonetheless, the draft conclusions do not appear to seek to take this discussion any further, and merely calls upon "Libyan authorities to demonstrate a genuine commitment to fulfil" its international obligations with regards to the protection of refugees, and to respect the "non-refoulement" principle. Considering that cooperation between EU Member States and Libya has begun in a bilateral fashion (between Libya and Italy), and has involved the mass repatriation on charter flights of hundreds of ilegal migrants who were not given the possibility of applying for asylum, to whom UNHCR officials were denied access, in a process that was condemned on human rights grounds by both the European Parliament and the European Court of Human Rights, this appears unrealistic. It is all the more so if one considers that follow-up work concerning these deportations was carried out by Italian journalist Fabrizio Gatti (in a report published in L'Espresso magazine on 24 March 2005), who confirmed, based on information obtained from the Red Crescent Moon (the Muslim equivalent of the Red Cross) that at least 106 people had died during the repatriation of "illegal" migrants through the Sahara desert, who included people deported from the Sicilian island of Lampedusa.

With regards to the lack of dialogue in this process of "establishing" a dialogue with African countries, it is worth noting that talks with officials from Niger (which is likely to be the next country that will be visited by an EU Commission "mission") indicated that Niger did not consider immigration by its nationals into Libya to be a problem, but rather a necessary source of income for its citizens, although it agreed that there were grounds for initiating conversations. Nonetheless, the EU insists on the need to "extend this cooperation [with Libya] to the main countries of origin and transit on the African continent" to enable them to "better manage migration".

1. Council of the European Union, Brussels, 27 May 2005, doc no: 9413/1/05 REV 1; Note from the Presidency to the Council. Subject: Draft Council Conclusions on initiating dialogue and cooperation with Libya on migration issues (pdf)

2. European Commission: Technical Mission to Libya on illegal immigration - report (pdf)