External Border Controls Research Articles

Mobile spaces of control and moral geographies: places of internal bordering, immorality and crime in Sweden

ABSTRACT This paper – based on ethnographic fieldwork conducted in 2017 with the Swedish border police force in charge of detecting and deporting irregularised migrants – analyses bordered urban space. It contributes to discussions about moral geographies that are produced through bordering work of border police officers, which sometimes blurs the distinction between external and internal border controls, based on an analysis of three spaces: the port as an “in-between” space of bordering; workplace inspections; and searches of private homes and other types of accommodation, conducted with the aim of detecting morally censured sex work. As I find, officers function as gatekeepers of the nation and its moral values in relation to space and thus map the area of their jurisdiction according to potentially “illicit” conduct of noncitizens. This, in turn, legitimises their gendered, classed and racialised inspection practices even as these practices entrench the perceived “otherness” of such spaces and manifest moral judgements.

Authority and Coercion Beyond the State? The Limited Applicability of Legitimacy Standards for Extraterritorial Border Controls

Extraterritorial border controls prevent migrants from arriving at the territory of the state and effectively undermine rights to apply for asylum and protections against non-refoulement. As a result, a wealth of scholarship argues that external border controls are illegitimate exercises of state power. This paper challenges two versions of this argument, first, the claim that carrier-sanctions are illegitimate because they subject migrants to morally impermissible forms of coercion and, second, the claim that carrier-sanctions are illegitimate because they subject migrants to illegitimate claims to authority.Against coercion-based accounts of legitimacy, this paper defends the view that while carrier-sanctions are coercive, the coerciveness of a policy is not relevant to its legitimacy. What is relevant is instead whether the authority claimed by the state is legitimate. Against authority-based accounts, this paper argues that states are unable to claim authority in the relevant sense over migrants that are present in the territories of other states.The paper concludes by suggesting that the charge that carrier-sanctions are illegitimate should shift towards the state that allows carriers to enforce these policies on their territories. No state has the legitimate authority to permit other states to pressure carriers to prevent migrants in need of protection from travelling. The state that introduces carrier-sanction legislation, on the other hand, is not exercising illegitimate authority though they may act contrary to demands of justice.

A principal-agent analysis of inter-agency cooperation in EU border management

ABSTRACT In the wake of the 2015 Migration Crisis, the European Union has embarked on an extensive process to reinforce external border controls and make horizontal cooperation between EU agencies critical. This article leverages the principal-agent model to elucidate the impact of inter-agency cooperation on agency autonomy and, by extension, the management of the EU’s external borders. The findings reveal that inter-agency cooperation leads to a situation in which the participating agencies enjoy more room for manoeuvre than originally granted by the EU legislature. This research sheds light on the proactive efforts of the concerned agencies in working alongside their counterparts to bolster their institutional standing and policy turf, thereby fuelling the institutionalisation of joint implementation in EU border management.

Robodeport or surveillance fantasy?: how automated is automatic visa cancellation in Australia?

Australia has been widely condemned for its harsh and comprehensive external border controls that seek to control the inward mobility of would-be asylum seekers through visa denial, interdiction and offshore detention. Less widely discussed is the fact that internal controls have been repeatedly ramped up over the past two decades. This includes the administrative removal of lawfully-present non-citizens following visa cancellation on character grounds under s501 of the Migration Act 1958 (Cth). Automatic visa cancellation was introduced in 2014 for non-citizens sentenced to a prison term of 12 months or more, or for certain offences, bypassing individualised decision-making and raising the spectre of a visa cancellation pipeline feeding a highly automated deportation machinery. In an age of increasingly automated forms of governance, a key question that arises is the role that has been played by automated systems in achieving what has been a seismic shift in practice, and the normative implications of any developments towards automation within the visa cancellation and removal systems. This paper outlines the shift towards automation in other systems of governance in Australia-most notably the notorious Robodebt scheme-before examining automation in Australia's visa cancellation system. Documentary analysis of recent parliamentary inquiries, independent reports and government policy is used to piece together the development of inter-agency data exchange practices and automation over three specific periods-historical practice pre-2014, post-2014 to the present, and proposed future developments. We conclude that Australia's s501 visa cancellation system is neither automated nor automatic. Rather, the 2014 law reform gave rise to a 'surveillance fantasy' with immense consequences for non-citizens, particularly those who face long days in immigration detention at the conclusion of their prison sentence. We show that while concerns about increasing automation are well-founded, systems based on less sophisticated forms of information handling and reliant on human decision-making nevertheless continue to raise age-old questions concerning efficiency, accuracy and fairness.

Frontex and access to justice: The need for effective monitoring mechanisms

AbstractAccess to justice depends on the ability of the person who is alleging a breach of human rights to establish to a credible extent the facts of the case. Where the individual is unable to provide supporting documentation about the facts, the claims are likely to be found inadmissible, or at least the defendant's lawyers are likely to seek to have the case dismissed on the basis of no case to answer. The transnational nature of state authorities' violence in external border controls (border violence) complicates the ability of victims to establish what has actually happened. Indeed, victims are often on one side of the border and those seeking to assist them on the other, while border police themselves are most reluctant to assist in establishing facts which may result in liability for themselves. This article examines how the EU can establish effective monitoring mechanisms with the competence to investigate allegations of state agencies' border violence building on existing structures.

Fiasko reformy polityki imigracyjnej, kontroli granic zewnętrznych oraz polityki azylowej Unii Europejskiej w latach 2015-2020

THE FAILURE OF THE REFORM OF THE EUROPEAN UNION’S IMMIGRATION POLICY, EXTERNAL BORDER CONTROL, AND ASYLUM POLICY BETWEEN 2015 AND 2020: A CRITICAL ANALYSIS The primary research objective of the article is to evaluate the reform of the immigration, external border control and asylum policy of the European Union between 2015 and 2020. The author formulates two research hypotheses. The first is based on the assumption that the legislative packages presented by the European Commission in 2015-2016 and then in 2018 have almost completely failed. The second hypothesis is that the idea of establishing a permanent resettlement mechanism as a means to overcome the migration crisis in the Union in 2015-2016 and address the future migration challenges of the EU has generally failed. Instead, the EU’s temporary resettlement mechanisms in place between 2015 and 2017 and the 1:1 resettlement mechanism between the EU and Turkey introduced in 2016 have worked well. The author then formulates two research questions: firstly, why have the legislative acts of the European Commission largely failed?; and secondly, why has the temporary relocation of asylum seekers in the EU generally been successful?

Features of legal differentiation of the border sphere in Ukraine

This scientific article is dedicated to the peculiarities of legal differentiation in the border sphere in Ukraine. The article examines legislative and regulatory acts that have regulated the functioning of the border service during different periods of its existence. It also analyzes the process of its formation and development as an important component of Ukraine’s national and state security system. The article discusses its role in ensuring the protection of Ukraine’s state border. Additionally, an analysis of international experience in the field of protecting state borders of European countries has been conducted, which demonstrates the need for clearly defined priorities and appropriate strategies for the development of mechanisms for the protection and defense of shared state borders. The obtained results allowed us to establish that in the majority of European Union (EU) countries, the functions of border control are carried out by law enforcement agencies within the police force. In some countries, such as Malta (and partially in Spain), the control of maritime borders is entrusted to the armed forces. Several EU countries have specialized bodies or agencies (border services) that specifically deal with border-related issues outside the competence of the police. This applies to Finland, Latvia, Lithuania, the Netherlands, Poland, and Switzerland, where border guards have law enforcement powers in certain cases. Additionally, the national services responsible for external border control are often subordinate to various ministries, most of which are ministries of internal affairs, while in other countries, they also include the Ministry of Defense (France, Italy, Norway, Portugal, Spain, Sweden, and the Netherlands).International experience in safeguarding national borders in European countries emphasizes the importance of establishing clear priorities and development strategies for border protection and defense mechanisms. Over a significant period of time, international cooperation in this field has been evolving and actively implemented. Alongside the governing bodies of the European Union, key participants in this process are the border agencies of EU member states that share common borders. They operate based on bilateral and multilateral agreements on cooperation and mutual assistance in border-related matters, as well as international documents pertaining to border security. The article draws conclusions about positive changes in the legal status of the State Border Guard Service of Ukraine that have taken place over the past decade and examines the problems of legal differentiation in the border sphere in Ukraine due to russian aggression. In particular, due to fundamental differences between functions and tasks performed by the State Border Guard Service of Ukraine along different sections of Ukraine’s state border, as well as in connection with russian aggression, the idea of legal differentiation in the border sphere has been proposed. This would involve the creation of a separate military formation called the «Border Defense Forces» in the east and south of Ukraine, which would be integrated into the Armed Forces of Ukraine. In the western part of the country, the State Border Guard Service of Ukraine would remain under the Ministry of Internal Affairs of Ukraine, taking into account global experience in the protection, defense, and security of state borders by other countries.

Perspektywy reformy polityki imigracyjnej, kontroli granic zewnętrznych oraz polityki azylowej Unii Europejskiej. Analiza krytyczna

The primary objective of the article is to present the prospects for reform of the European Union’s immigration, external border control and asylum policies, after previous attempts at such reform between 2015 and 2020 failed. The first part of the article provides a politico-legal analysis of the so-called New Pact on Migration and Asylum announced by the European Commission on 23 September 2020, while the second part presents the balance of legislative work on the pact so far in the period 2020–2023. The analysis is essentially limited to the legal situation as of 20 June 2023. The author formulates two research hypotheses. The first hypothesis is that the European Commission’s so-called New Pact on Migration and Asylum is, in essence, not a new legislative package at all, as the vast majority of the legislative proposals it contains are drafts from 2016 and 2018. The second hypothesis is based on the assumption that the refugee and humanitarian crisis in Ukraine in the years 2022–2023 had essentially no influence on the legislative process of the so-called New Pact on Migration and Asylum. The author then asks three research questions. First, which provisions of the pact on migration and asylum introduced new elements into the reform process of the EU’s immigration, external border control and asylum policies? Second, why did the refugee and humanitarian crisis in Ukraine in 2022–2023 not have a major impact on the legislative process on the pact? Third, what has been the track record of the 2020–2023 reform so far?

Monitoring the debate on the new pact on migration and asylum

The New Pact on Migration and Asylum presented by the European Commission on 23 September 2020 aimes at representing a new start with regard to the whole of issues related to the management of the challenges posed by migrants, refugees and asylum seekers arriving in the European Union. High expectations were raised that the reform would truly address the pressing questions that are high on the political agenda in many European countries. The New Pact has provoked a controversial debate. International organizations, European institutions, Member States, civil society organizations, academics have commented the complex package of policies and legislative proposals. One of the most conflictive issues regard the external dimension in the migration and asylum fields. Some observers, in particular Governments and the Council, deem that the cooperation with third countries of origin and of transit or first safe haven represents an essential aspect of solution, having regard to the “success” of the agreements with Turkey and Libya in terms of the reduction of arrivals from these countries. Others are most critical with respect to the “externalization” of responsibilities and of the control of external borders. Another conflictive issue is the reform of the “Dublin” system, addressed in the Pact as part of the Regulation on Migration and Asylum Management. The Mediterranean Member States oppose the continuing attribution of responsibility for asylum seekers to countries of first arrival and the insufficient solidarity mechanisms. Other Member States refuse any obligation of accepting asylum seekers relocated from other Member States. For the time being, no solution is in sight to overcome these divergencies.

Border Walls, Pushbacks, and the Prohibition of Collective Expulsions: The Case of N.D. and N.T. v. Spain

Abstract This essay explores the impact of N.D. and N.T. v. Spain on the ECHR system. The case deals with the immediate return of aliens at Melilla’s border fence. Based on conceptual analysis, the author submits to critical scrutiny the arguments developed by the ECtHR. The Court’s reasoning is framed within the riveting interdisciplinary debate on external border control. The Grand Chamber’s final decision reduces the scope of the protection offered by Article 4 Protocol 4, for it introduces a highly indeterminate exception to the prohibition of summary returns at the border. The author suggests that this solution might favor non-entrée strategies and promote the current trend of externalizing the asylum procedures. Introducing broad exceptions to the prohibition of collective expulsion, especially if coupled with strong presumptions in favor of States, increases the effectiveness of border walls qua accountability waivers.

External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement

Principle of non-refoulement protected by EU law – National practices – Deterrence – Pushbacks – Border police deterrence – Reaction of EU institutions – Legal uncertainties – ‘Safe country of origin’ – ‘First country of asylum’ – ‘Safe third country’ – EU values – New Pact on Migration and Asylum

An emotional security community under pressure? Emotional discursive (de)legitimation in EU external border control

ABSTRACT This article analyzes How do emotion norms and emotional norms (de)legitimize the EU as a security community? Conceptually, the article expands on the emotional underpinnings of a security community by distinguishing between emotion norms and emotional norms. This then allows to examine emotional (de)legitimation at the level of policy content (i.e. emotional norms) and policy process (i.e. emotion norms). Methodologically, the article develops a framework for an emotion discourse analysis that distinguishes between the valence and social dimension of emotional vocabulary. Empirically, it shows how the discursive (de)legitimation of the EU as a security community in one of the most dynamic fields of EU security policy, external border control, (1) revolves around four emotional norms (effectiveness, responsibility, solidarity and sovereignty) and (2) reflects a struggle about the constitutive emotion norm of a security community: trust.

Inside out and outside in: COVID-19 and the reconfiguration of Europe’s external border controls

»Von innen nach ausen und von ausen nach innen: COVID-19 und die Rekonfiguration von Europas Ausengrenzkontrollen«. The extension of border controls beyond Europe’s territory to regulate the flows of would-be migrants is a popular – and highly controversial – policy approach adopted by European governments. The present paper examines recent developments char-acterizing the externalization of border management in Europe, paying par-ticular attention to the changes that have occurred during the COVID-19 global pandemic. This represents a time when mobility has been severely re-stricted in most of Europe (and the rest of the world). The aim is to map the impact of the pandemic on relevant “externalizing” policy instruments (e.g., visas, extra-territorial patrolling and surveillance, external processing of asylum claims, and offshore detention of migrants) and to assess their future tra-jectories. The paper shows that during the pandemic, the externalization of border controls has expanded and adapted to the new conditions. As a result, some of the key dynamics that define this policy arrangement have been rec-reated internally, a phenomenon referred to here as the “internalization of externalized border controls.”. © 2021, GESIS - Leibniz Institute for the Social Sciences. All rights reserved.

External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement

Over the past decade the EU has witnessed an increasing number of third-country nationals trying to reach its borders to find a safe haven there. In these difficult times, both the EU institutions and its member states have continued to proclaim their adherence to the right to seek asylum and the principle of non-refoulement, while at the same time exercising (member states) and tolerating (EU institutions) sometimes rigid border policies which have, in practice, repeatedly caused the circumvention or breaches of these rules. The aim of this paper is twofold. First, it will show that there is a substantive change in the member states’ border practices and their willingness to admit third-country nationals to refugee status determination procedures, compared to the pre-2010 period. Second, the paper will highlight that the change in the member states’ practical approach towards non-refoulement has taken place without altering a single word in the definition of non-refoulement in EU primary and secondary law. Consequently, the gap between the EU’s constitutional, normative expectations and member states’ practices has been widening, leading to tension between the reality and the law, which even the new Pact on Migration and Asylum (hereinafter: Migration Pact) may be unable to eliminate.

Las restricciones a la libre circulación de personas en la UE durante la era COVID-19: hacia un futuro incierto

Este estudio analiza el impacto que la COVID-19 ha supuesto para la libre circulación de personas y el control de las fronteras tanto interiores como exteriores en la UE, en un momento especialmente delicado, ya que ha coincidido con la apertura de la Conferencia sobre el futuro de la UE. La hipotésis de partida es la inadecuación del marco jurídico de la libre circulación, tanto en el Derecho Internacional como en el Derecho Europeo, para adoptar las restricciones que la lucha contra la pandemia exige. Este hecho, unido a que los Estados miembros son competentes en materia de salud pública y en la preservación de su seguridad nacional, han alterado la esencia y los límites de un derecho clave para el presente y el futuro del proceso de integración europea. De ahí que sea necesario preservar el actual acervo normativo frente a estas y otras posibles derivas restrictivas, evitando así dar por sentado su irreversibilidad.

Understanding the crisis of refugee law: Legal scholarship and the EU asylum system

AbstractIn 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

A Procuradoria Europeia e seu papel no fortalecimento de integração europeia

O texto ora apresentado traz à lume o momento político e econômico vivenciado pela União Europeia frente às adversidades advindas da globalização e a necessidade premente de fortalecimento da integração. O controle das fronteiras externas e o combate à criminalidade transnacional, dentre outras políticas adotadas pela União, tem por escopo manter e aperfeiçoar o espaço liberdade, segurança e justiça, com a adoção de um conjunto de medidas, dentre as quais a Cooperação Judiciária em matéria penal, que traz em seu bojo a consolidação do direito penal europeu, com a possibilidade de estabelecimento de regras mínimas relativas à definição das infrações penais e das sanções em domínios de criminalidade grave com dimensão transfronteiriça. Nessa esteira e visando o combate à criminalidade lesiva dos interesses financeiros da União, institui-se a Procuradoria Europeia, sobre cuja atuação prestes a iniciar, apresentamos algumas reflexões, fruto de questionamentos e inquietações que circundam o nascimento do novel Ministério Público europeu.

ПОЛІТИКА ЄС ЩОДО ПРОТИДІЇ ТОРГІВЛІ ЛЮДЬМИ

After the mid-1990s, the EU realized the need to develop a common approach to combating human trafficking. As a result of the increased competence of the relevant EU institutions, as well as the increase of stakeholders’ concerns about its internal security and control of external borders began to grow, which gave push to the unprecedented formation, expansion and consolidation of anti-trafficking policy. Accordingly, a number of legislative and policy instruments have been created for this purpose. Important EU anti-trafficking program activities include the EMPACT program (European Multidisciplinary Platform Against Criminal Threats) (2011-2013) and (2013-2017), which consisted of the joint participation of Member States in multidisciplinary operational actions to combat organized crime involved in trafficking in human beings. Also in 2009, the EU developed the Global Approach to Migration and Mobility, as well as a separate document focused on strengthening the EU’s external influence against human trafficking. A more recent EU migration program in 2015 provided Member States with a comprehensive set of tools to manage migration and combat trafficking in human beings. Important tools in the fight against trafficking in human beings in the EU include Directive 2004/81/EU, which regulates the granting of temporary residence permits to third-country nationals who have been trafficked; Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims; Directive 2012/29/EU, which set additional minimum standards for the rights, support and protection of trafficking victims. In 2012 a joint EU strategy to eradicate trafficking-related crimes was launched for 2012-2016. An appropriate information platform has also been set up, which contains information on legal documents, initiatives, or possible projects and stakeholders dealing with human trafficking. In addition, a funding program has been established to promote quantitative and qualitative research projects, enhance the exchange of valuable knowledge and improve the quality of data collection. We came to the conclusion that institutional mechanism of the European Union in combating with trafficking in human beings is a system of EU bodies that adopt relevant regulations. This institutional mechanism has a rather complex structure, based on the European Parliament, the European Council, the European Commission, the European Anti-Trafficking Coordinator, the EU Expert Group on Trafficking of Human Beings, Europol, Eurojust, the European Judicial Network. The main component of this structure is the European Commission, which makes decisions and takes initiatives in this area. A characteristic feature of the EU’s anti-trafficking policy is not only to ensure respect for human rights of victims of this crime, but also to create appropriate conditions for its rehabilitation, further socialization and prosecution of perpetrators. In sum, the EU treats human trafficking as one of the global problems of our days and is making considerable efforts to combat it.

The Schengen Crisis and the EU’s Internal and External Borders:

The EU was founded on the project of “Europe without borders”, which means elimination of internal borders between Member States according to Article 26 of the Treaty on the Functioning of the European Union. The counterpart of this objective has been the transfer of the controls to the external EU borders. In the Schengen area, external borders are controlled by common principles and procedures encompassed in the 2016 Schengen Borders Code. Member States have negotiated the Schengen agreement to maintain such external border controls, with the aim of protecting their citizens from various dangers and guaranteeing their national migration policies towards third-country nationals. Member States have therefore transposed the function of national border controls to the external EU borders. Cross-border cooperation within the EU has developed to reinforce the Schengen Space of free movement and has been jeopardized by the unorganized massive peak arrivals of migrants in 2015. This article analyses whether the 2015 Schengen crisis confirms the security-orientated approach or not, specifically as the crisis confronts the EU with national claims to recover the control of internal borders. It has been argued that this movement is proof of the resilience of Westphalian borders. This article is an attempt to show how European judicial power tried to limit such a national re-appropriation of borders, leading to a functional distinction between internal and external borders that may allow a departure from an exclusive security-orientated approach of external borders of the European Union towards a more cohesive approach to controls at EU external borders.

Pandemic Response as Border Politics

AbstractPandemics are imbued with the politics of bordering. For centuries, border closures and restrictions on foreign travelers have been the most persistent and pervasive means by which states have responded to global health crises. The ubiquity of these policies is not driven by any clear scientific consensus about their utility in the face of myriad pandemic threats. Instead, we show they are influenced by public opinion and preexisting commitments to invest in the symbols and structures of state efforts to control their borders, a concept we callborder orientation. Prior to the COVID-19 pandemic, border orientation was already generally on the rise worldwide. This trend has made it convenient for governments to “contain” the virus by externalizing it, rather than taking costly but ultimately more effective domestic mitigation measures. We argue that the pervasive use of external border controls in the face of the coronavirus reflects growing anxieties about border security in the modern international system. To a great extent, fears relating to border security have become a resource in domestic politics—a finding that does not bode well for designing and implementing effective public health policy.