Border regimes and the autonomy of migration

Discussion paper for the september workshop in London

24.Sep.04 - "Freedom of movement and settlement are basic human needs. Migration is a fact, its autonomy could and cannot be regulated, as states and transnational organisations would want. Migration is a consequence of economic exploitation, political repression and war but also of the legitimate interest of people to find better or different living-conditions. Free movement for everyone must become a reality which we have to fight for by any means necessary." (from the call of noborder network to the nobordercamp in strasbourg in 2002).

The metaphor of "European fortress" does not catch the actual characteristic of EU borders and does not reflect the struggles of migrants and asylum seekers who fight against the legal, political, social, and racial boundaries which affect their every-day lives. The prevailing migration discourse has long since shifted from the whole-sale hermetic isolation of the national labour market to an as efficient as possible filtering out of the exact and only temporarily needed work force. This paradigm change fundamentally changes the special role and function of the borders: as in many other areas, networking technologies are replacing the previously common, truly banal methods of visa endorsement and face checks. Borders are no longer material lines of fortification clearly identifiable by barbed wire or highly developed surveillance instruments. The border regime, often still played down with the well meant metaphor " Fortress Europe", is becoming omnipresent. Under the pressure of increasing mobility and in view of the autonomy of immigration, the drawing up of borders is becoming virtual and its repressive character is hardly generalisable any more: it could happen here as well as there, for this reason or another, and with a series of different consequences. Borders fold and shift inwards or outwards, they are advanced into safe third states and expanded into the hinterland. Controls have long since stopped being limited to nation states but cover the inner cities' traffic junctions and supra-regional traffic routes to the same extent as they do half or non-public spheres - the most prominent of these being the workplace.

The rhetoric of sealing Europe's borders against illegal immigrants and bogus asylum seekers has hidden political and moral responsibilities for the implementation of borders' control measures which have caused the deaths of thousands of people in the attempt of crossing EU frontiers. At the same time, this rhetoric hierarchizes people's right of mobility overshadowing the reality of their life and work condition; both in the origin and in the hosting countries. We believe that to strengthen struggles for migration it is essential to identify to what extent the borders of Europe produce their effects inside and outside the EU territory and to fight against national and supranational borders wherever they happen to be.

Already Europol has estimated that every year approximately 500.000 people manage to cross the borders of Schengen Europe "illegally". Immigrants conquer "Fortress Europe" with the support of their networks and communities as well as commercial smugglers. No doubt: many immigrants fail to cross these outer limits that are constantly moving further east and south. They feel utter despair in Kiew and Tanger, they suffocate in containers or they drown in the mediterranian sea. They get "stuck on the road", in it s fullest meaning. They become victims of a brutal migration regime, that is coordinated throughout Europe. Still the autonomy of migration cannot be stopped. Even Antonio Vitorino, commissionary of the European Community, is acknowledging that the "fight against illegal migration" cannot be won by the authorities. Vitorinos conclusion is to control at least, what cannot be prevented. Border- and Migration managment are the current magic terms of "modern" migration politics. The clue is to combine exclusion and the deportations of the "unwanted" with controlled recruitment and selection of the "wanted". But the whole "Europeanization" of asylum- and migration politics, the globalization of the migration regime through EU-enlargement processes and transnational agencies (as it is summarised in the following pages) should not be seen as an isolated selfdynamic capitalist invention. It is rather a reaction to the migration-movement, which could never be stopped or controlled anymore on a national or westeuropean level. The ongoing daily practices and changing tactics of undermining the new control-systems challenge again and again the borderregime, migration movement and migrationregime are in a kind of permanent competition.

Migration is a social movement of appropriation and not just a collateral damage of global capitalism. The political power of exodus and refusal is subverting the sovereignty of both the nation states as well as the new regimes of hyper-exploitation on a global level. As globalization from below, migration movements constitute a global resistance against old and new economies and their modes of exclusion, repression, division, separation, detention and selection.

From European border regime and EU Enlargement ...

During the last decades European borders underwent deep transformations. The signing of the Schengen agreements, their incorporation in the Amsterdam Treaty through the creation of an area of 'freedom, security and justice' and the enlargement process determined structural changes in border control regimes. The common assumption that controls were subsequently relocated from national borders to the external frontiers of the European Union is only partially true. On a superficial level, the lifting of internal borders created a common space of circulation that widened the range of subjects able to enjoy a transnational freedom of movement. On a deeper level, the reciprocal responsibility implied by a 'communitarized' concept of borders, transformed every internal and external frontier into a frontier belonging to each member state. In other words, through the creation of integrated instruments of control such as SIS, Eurodac and Schengen visa system borders have been transformed in diffuse mechanisms of people's movement management which commence to produce their effects long before EU territorial delimitation and follow individuals inside its member states.

The EU enlargement - the first wave of which was completed on May 1st 2004 with the accession of 10 new member states - brings into light the deep ambivalence of the process of borders' relocation which produces an increasing externalization of people's movements management. As a condition of membership in the Union, applicant states have been required to fully implement the communitarian standard of migration and asylum policies before completion of their accession and despite the fact they took no part whatsoever in the negotiations and decision process. In order to benefit from visa exemption for their citizens, candidate countries had to implement measures to prevent the transit of illegal migrants through their territory, guarantee the readmission of migrants returned from Member States and progressively implement a tighter system of visa regulation the basis of which had already been established within the Schengen framework. Moreover, the system set up by the Dublin Convention to prevent the repeated applications by asylum seekers arriving from countries considered 'safe' forced Central and Eastern European Countries to shoulder a great part of the refugees who tried to enter member states overland.

The 'Europeanization' of new member states' and candidate countries' domestic legislations has implied the introduction of legal institution such as the administrative detention of aliens, has widened the precondition for the expulsion of foreigners and has strengthened its implementation system through the construction of guarded and shelter centres for migrants and asylum seekers. European external borders preserve and even reinforce defensive tools of the old 'iron curtain' that, through the PHARE programmes , will be relocated along the eastern frontier: fortified border watchtowers are planned to being built every 15 to 20 kilometres, each equipped with the most advanced and expensive electronic and optical paraphernalia. Differing from conventional geopolitical borders, the new European external frontiers are not fortified against the threat of military invasions. Instead, the new border regime represents a socio-technological attack on the informal cross-border economy and on transit migration.

Official documents and public discourse justify the fortification of European borders in view of combating illegal migration and the abuses of asylum requests. Nevertheless, the tightening of asylum and migration polices can also be seen to lead to a massive 'illegalization' of movements. In the case of cross-border trade and transit migration, new visa requirements mean that movements of population which were formerly considered lawful have become illegal. After the collapse of the 'iron curtain' a new curtain of entry visas and administrative procedures has been erected with the purpose not only of limiting admission to European member states but also to candidate countries and neighbouring states, frustrating the promise of a freedom of movement that had only recently been acquired. Moreover, the illegalization of movements also corresponds to the illegalization of migrant work. In fact, the introduction of EU standard of migration policies in Central and Eastern European Countries precludes the free access of migrant workers to the official labour market unless they entry the country already possessing a visa for working purpose and a job contract.

Following accession, citizens of new member states do not immediately benefit from the right to freedom of movement for workers that is enjoyed by the citizens of the old member states because workers are not able to freely circulate during a transitional period that will last from two to seven years. During this time migration movements for employment purposes will be regulated according to communitarian and national policies, even though different conditions may be agreed on the basis of bi-lateral relations between singular member sates and candidate countries.Although the greater possibility of mobility is regarded as one of the benefits of enlargement in the eyes of the populations of Central and Eastern European Countries, accession to European citizenship will continue to be restricted precisely with regard to those rights which characterised its most significant content: the freedom of movement and settlement in other member states. Nevertheless, visa exemption for citizens of candidate countries and new member states facilitate their accession to the informal labour market and assure them a privileged position in comparison to migrant workers of different origin. This system - which will be reproduced for each enlargement phase - arranges in a hierarchy the citizens of the present and future Europe, giving formal sanction to a inner method of government based on unequal rights.

... through new Agents of border's control ...

The increasing relevance of borders is corroborated by the fact that they are becoming ever more autonomous objects of European policy-making and that permanent community structures are created in order to co-ordinate integrated strategies of border management. Already in May 2002 the Commission proposed the setting up of an 'External borders practitioners' common unit' which was endorsed by the Council in the Plan for the management of the external borders of the Member States of the European Union agreed on June 2002. More recently the Commission presented a Proposal for a Council regulation to establish a European Agency for the Management of Operational Co-operational at the External Border. Warsaw is the most probable candidate city that will host the new agency. In this view, the Polish government has increased the budget of the Border Guard department up to euros 20 million. While the competencies of the Common Unit regarding the strategic co-ordination of border management would remain, this new Agency would deal with operational tasks that, until now, have been left to the exclusive competence of national authorities. For instance, the Agency would be in charge of 'co-ordinating and organising return operations of Member States and identifying best practices on the acquisition of travel documents and removal of third country nationals from the territory of the Member States'. The Commission justifies the Agency's supplementary competencies on the pretext that in most member states such tasks 'fall under the competencies of the authorities responsible for controlling the external borders'. This extension of competencies confirms, however, that the process of 'communitarization' changes the object of border management: managing external borders is not limited to keeping unwanted foreigners out but to continue administrating their positions inside the territory. These positions are not at the exclusive disposal of the hosting state authorities but arise from the intersection of powers exercised by different national, trans-national and sub-national actors.

The Unit and the Agency will also be in charge for the Programme of measures to combat illegal immigration across the maritime borders of Member States of the European Union agreed by the European Council in November 2003. In order to avoid the limitation to carry out controls in the high sea for boat patrol of a different sate flag - provided in the Montego Bay Convention on the law of the sea - the Programme introduce the concept of 'virtual' sea border and establishes that illegal immigration cannot be considered as an 'innocent passage'. In other words, the Programme subverts the principles established in international law and consider passage of ships suspected of transporting illegal migrants as 'prejudicial to the peace, good order or security of the coastal State' (art. 19(2) Montego Bay Convention), reserving to them the treatment engaged against ships transporting weapons. According to this interpretation of the international law, in July 2004 the Italian authorities did not allow the Cap Anamur vessel the right to peacefully enter the Italian territorial sea, seriously jeopardizing the duty to render assistance to 'any person fount at sea in danger of being lost' (art. 98 Montego Bay Convention).

In the fields of migration and asylum policies, operational agencies and expertise groups proliferate to the detriment of transparency. The alarm raised over the lack of democratic accountability is compounded by the concerns over the limited judicial control of the Court of Justice. In fact, various norms in European Treaties exclude the competence of the Court when 'relating to the maintenance of law and order and the safeguarding of internal security' (Art. 68 II EC), and a similar provision has also been reproduced in the draft Constitution presented by the Convention. Bearing in mind that national legislation considers immigration and asylum policies as strictly related to the maintenance of 'internal security' and 'public order', operational tasks carried out by national police forces and administrative authorities are de facto barred from the control of the European Court of Justice.

In addition, border's control measures and operational tasks are more and more often delegated to private agents. 'Carriers', for example, are required to make stringent checks for undocumented aliens to avoid running the risk of sanctions. 'Carrier liability' clauses are contained in all aliens laws of European member states, and they are also now introduced in applicant countries' legislation so as to meet the Schengen standards. Moreover, the principle according to which the right to reside on the territory is conditional to the persistence of a job contract assigns to employers great powers of the lives of migrant workers, privatizing the right to membership of the social and political community.

... to Global Migration Mangement

Borders' transformation reflects political strategies over the management of migration movements. The increasing externalization of the control measures is consistent with a new strategy which has been summarize by Theo Veekamp - civil servant at the Dutch Ministry of Justice - in a pamphlet entitled People flow. Managing migration in a new European Commonwealth. The pamphlet delineates a shift from trying to control and stop people flows to manage them administrating the autonomous migration drive in 'constructing ways' for the hosting countries. The new strategies will be based on an international network of European Union mobility service point located nearby the origins of migrants' flow. These service points will constitute a sort of stop over for migrants and asylum seekers who intend to come to Europe. Asylum seeker's applications and the following duty of protection will be manage in shelter centres located outside Europe. The same centres will host voluntary migrants whose plans to migrate will be re-directed by EU authorities according to the needs of hosting countries and global plans for migration management. Assistance shall be repaid through the work of migrants and asylum seekers or shall be assured in exchange of low rate loans. In other words, the debts that illegal migrants and protection seekers nowadays contract with the so called human traffickers in exchange for a passage to Europe, in the future, will be manage by official EU authorities. As a consequence of the sinking of the boat peoples in the Mediterranean see, negotiations are currently curried out by the Italian and the German ministers of Internal Affairs with the purpose of setting EU 'information points' for migrant along the southern coast of the Mediterranean sea.

Kiev 1998:

A team of IOM specialists met with high-ranking government officials. An extensive 'Migration Management Programme' is set up with the unvarnished priority to 'control illegal migration'. Unlike its neighbouring states in the west the Ukraine is no EU candidate and therefore not bound by the Schengen agreements. However, the 'fortress Europe' in the interest of West European countries should start here at that 'important transit station of the eastern people smuggler route'. Thus the IOM programme is directed against transit migration on several levels: registration and documentation of refugees and migrants, setting-up a first deportation camp, training of Ukrainian border police at the US/Mexican border, equipment of a pilot project with radio and infra-red technique in Kharkiv at the Russian border... During their work the IOM specialists were confronted with a problem surprising to them. They found that more than 70% of the transit migrants entered the Ukraine legally! As a consequence the government was trained in working out new laws and above all new visa regulations. With instructions from the IOM, migration to the Ukraine was first criminalized to fight it afterwards with all means at hand which were also made available by the IOM.

Quito , October 2002

IOM employees accompany a first group of young Ecuadorian workers on their flight to Madrid. They have passed a thorough selection procedure and are supposed to leave the country after one year. In March 2002, the IOM office in the Ecuadorian capitol established a databank, where young men and women could apply for work in Spain. In 2001 the Spanish and Ecuadorian government concluded a contract and instructed the IOM with its implementation. The Spanish employers needed cheap labour for the farms, the building industry as well as the nursing sector. With this pilot project they should not be recruited as usual from illegalised and thus uncontrolled migration. Moreover parallel to this legal recruitment project, the Spanish government had started a country-wide raid for 'illegals from Ecuador' and deported hundreds of people.
Two sides of the same medal: Whether in the Ukraine or in Spain/Ecuador, whether to destroy flight routes or engage governments of important transit countries in the migration control, or to recruit cheap labour corresponding to the economic requirements of the countries of destination - it is no coincidence that the IOM projects go in both directions. It is definitely this combination of exclusion and exploitation, their parallelism of fortress mentality and control which characterises the so-called migration management of the IOM. And that these projects serve mainly the interests of the West European governments is unquestionable - not only as in the two last examples described.

more information: adaiat.net | the trans-it! project hompage | campaign against migration management