Future Shocks 2023: Responding to the instrumentalisation of migration

Written by Costica Dumbrava.

The issue(s) in short: The challenge and the existing gaps

In 2021, the attempts by the Belarusian government to destabilise the EU by encouraging irregular migrants to cross into the EU triggered a prompt policy response to tackle the risk of instrumentalisation of irregular migration at the EU’s external borders. Migrant instrumentalisation affects the EU’s and Member States’ capacity to protect external borders and creates humanitarian crises by trapping irregular migrants between borders. Although this is not a new phenomenon, such situations might multiply and broaden in the future, given the current international context of conflict and hostility, rising migration, and hardening of borders. The EU and its Member States have adopted a series of measures to address migrant instrumentalisation, which include border control measures, new legislation, sanctions, and diplomatic and humanitarian actions. A more comprehensive toolbox is currently under development, but its effectiveness is yet to be tested, including how it contributes to the protection of the EU’s borders, ensures the protection of fundamental rights (such as the principle of non-refoulement), and addresses the root causes of migrant instrumentalisation.

Position of the European Parliament

The European Parliament has strongly criticised the Belarusian government for its failure to respect human rights, including for its persecution of political opposition, attacks on media freedom and civil society, and flawed parliamentary elections. In its June 2021 resolution on systematic repression in Belarus and its consequences for European security, the Parliament expressed ‘concern regarding the increase in irregular migration from Belarus into the EU and about the potential involvement of Belarusian authorities in this phenomenon’, and called for the Member States and EU institutions ‘to follow developments in these areas and take the appropriate measures’. During a debate in November 2021 on the conclusions of the European Council, MEPs expressed different views on the nature of the crisis in Belarus, with some considering it a migration crisis and a hybrid attack on the EU, and others seeing it rather as a humanitarian crisis.

In its February 2022 resolution on the implementation of the common security and defence policy, the Parliament considered ‘the instrumentalisation of migration flows through the EU’s eastern external borders coupled with disinformation campaigns to be a form of combined hybrid warfare that aims to intimidate and destabilise the EU’. It called on the Union ‘to develop relevant legislation providing necessary safeguards to effectively react and respond to the instrumentalisation of migration for political purposes by third countries, to ensure the effective protection of the EU’s external borders and the protection of human rights and human dignity’. The Parliament also called on the Union and the Member States ‘to improve their capabilities to identify hybrid threats’.

EU policy responses (Commission and Council responses so far)

At the European Council meeting in June 2021, the EU leaders condemned all attempts by third countries to instrumentalise migrants for political purposes. In response to Belarus’ hybrid attack against several Member States, the EU expanded its common foreign and security policy (CFSP) sanctions against Belarus. It imposed, in several rounds, individual restrictions (entry bans and asset freezes) on persons linked to the instrumentalisation campaigns, banned Belarusian carriers from entering EU airspace and accessing EU airports, and imposed targeted restrictions on companies, tour operators and hotels that have organised or facilitated irregular migration from Belarus into the EU. The EU offered immediate support to the affected Member States, including through the Union Civil Protection Mechanism and the involvement of EU agencies (Frontex, EUAA, Europol), and mobilised additional funds to assist humanitarian agencies on the ground. The new EU migration preparedness and crisis management network (Blueprint network) provided situational awareness and ensured a coordinated operational response. As of January 2022, the Operational Coordination Mechanism for the External Dimension of Migration (MOCADEM) has been used in the Council to coordinate and monitor the implementation of the EU’s external migration policy. The European External Action Service (EEAS) also stepped up its work to counter false and misleading information online, focusing on where migrants exchange information and where Belarus and migrant smugglers may stimulate demand for irregular migration. In November 2021, the EU partially suspended the EU-Belarus visa facilitation agreement.

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In December 2021, the Commission presented a proposal for a regulation addressing situations of instrumentalisation in the field of migration and asylum – allowing affected Member States to derogate from common rules on asylum and return when confronted with situations of instrumentalisation of migration. Special provisions on the instrumentalisation of migration (including a definition thereof) were included in a proposal to revise the Schengen Borders Code (SBC), which will also allow Member States to take more restrictive border control measures when confronted with such situations. The Commission also put forward a proposal to prevent and restrict the activities of transport operators that engage in or facilitate smuggling or trafficking of people into the EU, as well as a proposal for a Council decision on provisional emergency measures for the benefit of Latvia, Lithuania and Poland (based on Article 78(3) TFEU on provisional measures in the event of a ‘sudden increase of arrivals of third-country nationals).

These initiatives complement pre-existing measures aiming to strengthen the management of the EU’s external borders, including the creation of the European Border and Coast Guard Agency (EBCGA/renewed Frontex), the establishment of European integrated border management, the expansion of the EU’s architecture of information systems for border management and security, and the launch of a new Schengen governance model. Instrumentalisation measures also fit into a more comprehensive effort to reform the EU migration and asylum system, embodied in the 2020 pact on migration and asylum. The pact includes a proposal to establish a procedure for screening third- country nationals apprehended crossing the external borders irregularly and a proposal for a regulation addressing situations of crisis and force majeure in the field of migration and asylum.

Concrete measures to counter instrumentalisation are also provided in the EU’s 2021 renewed action plan against migrant smuggling (2021-2025). The Commission’s 2023 operational strategy for more effective returns also highlighted the importance of coordination at EU level and the use of Frontex’s support on returns in the context of the instrumentalisation of irregular migration by the Belarusian regime. The Commission also proposed an EU police cooperation code to enhance law enforcement cooperation across Member States and give EU police officers more modern tools for information exchange.

Obstacles to implementation of response

Prompt measures by the affected Member States and the EU to counter the instrumentalisation of irregular migration by Belarus resulted in a significant decrease in irregular migration along the eastern land border), although the humanitarian crisis is not over. In the meantime, plans to set up a more comprehensive EU approach to tackle instrumentalisation of irregular migration has not advanced much. So far, none of the relevant proposals put forward by the Commission reached the inter-institutional negotiation phase in the legislative process. In the Council, the Member States could not agree on the instrumentalisation proposal (a partial general approach was rejected in December 2022). The provisions on instrumentalisation included in the proposal revising the SBC have also been contested in the Parliament.

Stakeholders have expressed concerns about creating a special legal regime for situations of instrumentalisation of irregular migration. First of all, it is argued that the normative definition of instrumentalisation of migration is too broad and unclear from a legal perspective. According to another view, there is a risk that the narrative of instrumentalisation is used to ‘normalise’ the use of detention and accelerated border procedures as standard migration management tools. By reducing legal safeguards and allowing for differentiated implementation of EU rules, the proposal may undermine the EU asylum system and EU law as a whole. The proposal may also be misguided, as it seems to punish the victims of instrumentalisation, and dehumanise them, instead of taking aim at third-country governments trying to destabilise the EU.

Disagreements on measures to counter instrumentalisation tie in with slow progress on the reform of the EU migration and asylum rules. Nevertheless, a breakthrough agreement in the Council in June 2023 on two key proposals is set to unblock the legislative process, potentially leading to the finalisation of the reform by spring 2024 (in line with a previous commitment by the co-legislators).

The Belarus crises provided an opportunity for the EU and the Member States to step up coordination and test the existing crisis response mechanisms (such as the new Blueprint network). Despite positive developments, the tendency to multiply crisis response mechanisms with each crisis may lead to duplication and further fragmentation. Further delays in the implementation of EU border management policies, including the deployment of new information systems and in the implementation of information exchange within the European border surveillance framework, may reduce EU and Member State capacity to anticipate and respond effectively to crisis.

Policy gaps and pathway proposals

In its 2022 Strategic Compass for stronger EU security and defence, the Council identified the instrumentalisation of irregular migration as one of the threats to European security and committed to substantially enhancing the EU’s resilience and ability to counter such hybrid threats. The Compass envisages the creation of an EU hybrid toolbox providing ‘a framework for a coordinated response to hybrid campaigns, including situations of instrumentalisation of migration’.

In June 2023, the Commission unveiled a toolbox to address the use of commercial means of transport to facilitate irregular migration to the EU. This includes the possibility to suspend or revoke the operating licence of an EU air carrier and the use of CFSP restrictive measures to target relevant transport operators facilitating irregular migration to the EU, improve situational awareness through reinforcing the Blueprint network and enhanced internal cooperation and information exchange, and engage with transport operators and authorities in third countries, especially in the aviation sector (such as by posting liaison officers at key airports).

Developing comprehensive, balanced, tailor-made and mutually beneficial migration partnerships with third countries is a key dimension of the pact on migration and asylum and is also key to addressing instrumentalisation of migration. This was proven during the Belarus crisis, when joint outreach efforts led to positive reactions in countries of origin and transit, such as the temporary suspension of flights from Iraq to Minsk. In its 2021 renewed EU action plan against migrant smuggling, the Commission proposed establishing ‘tailor-made Anti-Smuggling Operational Partnerships based on continuous exchange and mutually beneficial cooperation between the EU and the partner countries’, which would also include dialogue and coordinated engagement on state-led instrumentalisation of migration. The Commission also suggested the use of restrictive measures under the EU global human rights sanctions regime to target individuals, entities and bodies participating in state-led instrumentalisation schemes, and to take measures ‘in the area of visa, trade, development, financial assistance and others’. In May 2023, the Commission announced that it is preparing a comprehensive report on the EU’s visa-free regimes with a view to improving the visa suspension mechanism, in order to address newly emerging situations in which the visa-free regime could be abused and result in irregular migration or security risks for the EU.

Several papers provide further suggestions on how to improve the EU’s approach to the instrumentalisation of irregular migration. At operational level, a paper by the European Policy Centre argues that the EU needs to further improve its migration crisis response by pooling and streamlining relevant information and data on potential migration crises (and designate a ‘crisis hub’), strengthening intra-EU collaboration, and forming and maintaining international alliances. While acknowledging issues with the accountability framework regarding the operation of EU agencies, another paper argues that timely interventions by these agencies could help the Member States to manage migration without activating the problematic derogations provided in the instrumentalisation proposal. According to a paper by the Jacques Delors Centre, the EU and its Member States should revisit their approach to the instrumentalisation of migration by focusing on identifying their strategic objectives (avoid stepping into third countries’ ‘hypocrisy trap’), revise existing partnerships with third countries to provide more incentive for cooperation (expand legal migration pathways), and avoid a security narrative that frames the instrumentalisation of migration as a hybrid security threat. Another paper, by the Clingendael Institute, argues that the EU needs to take a geopolitical perspective on migration and focus on developing sustainable migration partnerships with third countries based on a common interest in controlled migration.

Possible action