Externalising Moral and Legal Obligations: Assessing the implications of the EU’s approach to border controls and asylum management

In recent years, both the EU and individual Member States have been relying more and more on cooperation with third countries for border control measures, including with countries of origin to discourage migrants from leaving in the first place. Specific actions include targeted deployments of Frontex missions to third countries, providing financial support for authorities in countries of transit, or investing in information campaigns that encourage migrants to remain in the countries of origin or transit – often at the expense of their safety of human rights. These measures are often negotiated and decided behind closed doors, and little information emerges about what agreements with third countries contain, or how the deals were reached. Journalists, MEPs, and civil society organizations have tried to shed light on what is a very nontransparent process. From an academic perspective, there is a need for literature to assess through what mechanisms the EU has encouraged the ‘pull-back’ measures adopted by third countries, and what place such encouragement has in the Union’s legal order. As the Commission is also promoting the idea of externalizing the handling of asylum requests in third countries, it appears there is a push for following the Australian and UK method of asylum governance, and the legal and moral implications of this need to be scrutinized. The approach of this paper to tackle the above mentioned developments is twofold. First, we develop a conceptual understanding for both the externalization and the informalization of border controls in the European Union through the use of soft agreements with third countries. Secondly, the current legal framework on cooperation is presented and analyzed, followed by a description of how soft external agreements challenge the norms of this framework. Having developed this understanding, we will turn our attention to on-the-ground examples, such as the recent deal made with Morocco in order to discourage and prevent migration, and other Commission proposals that systematically externalize the management of asylum requests. There is a diverse audience that this paper speaks to. Our contribution aims at integrating the academic debate on the externalization and informalization of borders, migration, and asylum policies by identifying what are the legitimate margins of discretion policy makers have without encroaching humanitarian and other constitutional norms applicable at EU level. Moreover, this work will also be of interest to practitioners and those interested in understanding the external policy of the EU. This segment of our audience can use the analysis of this paper to assess what the consequences of other agreements for discouraging migration might be, especially given the existing legal framework.