The hotspot approach: from greek lab to New EU pact on migration and asylum

Article first published on April 12, 2022

Meltingpot.org – The Borderline Sicilia conference analysed the latest trends of the politics of migration control

The conference organised by Borderline Sicilia, within the framework of the EUPAM project (EU Pact Asylum and Migration), funded by the EU agency EACEA, in collaboration with the Department of Culture and Society of the University of Palermo, was an important moment of reflection on the “European Union’s new pact on migration and asylum”¹.

It was a moment to reflect on the reception of migrants in Italy and in Europe, to address the issue of the so-called “hotspot approach“, and to reflect on what has happened in recent years, especially in Italy and Greece.

In this contribution we want to pay attention to the reports of Dr. Martina Tazzioli² and Prof. Giuseppe Campesi³. The former focused on the issue of biopolitical control of the hotspot in light of the principles of the new Pact with specific reference to the situation in Greece while the latter spoke about the process of normalisation of the hotspot approach and the risks of the implementation of the new Pact for the Italian system. These two contributions are interconnected and useful in understanding the transformations, which have taken place in recent years with respect to the management of the EU’s reception policies.

Both academics highlighted the importance of Greece’s experience in the process of transformation of European policies. Greece was presented as a real laboratory for the EU, where, more than in other countries, new techniques and procedures for the management of migration flows were tested. Even the hotspot approach, which is discussed extensively in Italy today and which would be extended to all the border areas of the old continent, has seen its evolution in Greece, not only by national authorities but, above all, by the EU and the European Agencies that have played a fundamental role in the current system in force in the country.

Before going into the specifics of the two reports, it is appropriate to take a step back to mention the reform process that Europe decided to launch in 2020, with the set of documents under the name of “New European Pact on Migration and Asylum“.

The New European Pact on Migration and Asylum

On September 23, 2020, the Pact was officially presented by the President of the European Commission, Ursula von der Leyen. It is a legislative proposal and a set of non-binding recommendations for EU Member States to govern migration phenomena affecting the European continent.

The EU’s stated aim is to curb the arrival of new migrants and increase returns through a series of policies coordinated among member states. Professor Chiara Favilli defined it as “a programmatic document with a legislative horizon⁴” and stressed that it was immediately clear that the simple proposals presented in September would be transformed into legislation through the provision of a precise roadmap⁵.

The main actions envisaged by the New Pact can be summarised as follows: 1) cooperation with third countries of origin and transit for the containment of departures and the implementation of repatriations; 2) strengthening the management of external borders; 3) intensification of action on repatriations and banning of secondary movements.

To be honest, the provisions of the New Pact do not represent a complete novelty in terms of European migration policies, but rather interventions that are in line with the general principles that the old continent has long followed in this area. Certainly, however, some of the actions envisaged represent a tightening of the measures already in place and others tend to perfect mechanisms already experimented in past years by individual states. From this point of view, the externalisation of borders and the hotspot approach, which has been so “successful” in countries like Italy and Greece, are of fundamental importance.

Ultimately, the New Pact represents the response that Europe intends to give to the migration phenomenon, which is increasingly seen as a social and economic problem for individual states, a response that is decidedly restrictive and is supported by a few very specific principles.

The Greek experience as a starting point for understanding the new European policies

In order to fully understand the proposals contained in the New Pact, especially those concerning the screening of migrants and the new return procedures, it is necessary to start with an analysis of what has happened in Greece in recent years. Greece has in fact been a laboratory for the European Commission where it has been possible to test practices and procedures for the management of migration flows before even getting to the point of drafting the Pact.

During her speech, Dr. Martina Tazzioli clarified the transformations, which have occurred in Greece in the last years in terms of migration flow management, also highlighting some differences compared to what happened in Italy. In particular, it was observed that with the arrival of the pandemic, in Italy hotspots (defined as the physical places where landing migrants are detained) were considered unsafe and replaced by the use of the infamous quarantine ships.

In Greece, on the other hand, there were intervention on these structures to create spaces where quarantine can take place. Therefore, throughout the period of the pandemic in Greece, the hotspot system continued to operate regularly and at full capacity. But not only that – in recent years, there has been a process of gradual reduction in the number of people entrusted to the Refugee Agency (UNHCR) in Greece, in favour of their direct management by the Greek Ministry of Immigration and Asylum. The number of people entitled to pocket money, accommodation in the camps and subsistence was thus drastically reduced. While these processes had already been in place since at least 2018, the last few months have seen a progressive acceleration with a concomitant increase in the number of people who have been put outside the reception system provided for refugees.

Moreover, since September 2021, at least two other related occurrences have been observed that have changed the face of migration policies in Greece. These are the identification of Turkey as a safe country and the exclusion from the possibility of obtaining refugee status of all migrants coming from one of the following countries: Pakistan, Afghanistan, Syria, Bangladesh and Somalia. Specifically, it was foreseen that any asylum applications submitted by migrants from one of these countries could be declared inadmissible at the discretion of the Authorities⁶.

On top of all the above are the serious bureaucratic/administrative difficulties that migrants have faced as an obstacle to the concrete possibility of applying for asylum or, in case, appealing against a denial. Then from October 2021, to make matters worse, the decision to remove the possibility of access to water and food in camps to all the people who had not yet filed an asylum application or those who were facing a first instance denial. The result of this decision was a drastic deterioration in the living conditions of at least 40 % of the refugees in the Greek camps (almost 7,000 people forced to live in desperate conditions). These restrictions were not at all accidental, but the result of a precise political will. These practices have made it increasingly difficult for migrants to access their rights, with obvious consequences in the legal field as well.

It’s not incorrect to state, as Dr Tazzioli did, that the pandemic has taken the reception system in Greece backwards and has led to an increasing dependence of the “Greek system” on the “European system” and its agencies, primarily Frontex. In Greece, the Frontex Agency plays a central role in the migrant management system and is leading to the creation of a more “police-type” reception system. It is no coincidence that, at the moment, asylum applications can be made on the islands in hotspots, or on the mainland but directly to a police station, with all the risks that this entails for the migrant’s freedom.

The normalisation of the hotspot system

When speaking of the hotspot approach, in the case of Italy, reference is made to the provisions of Art. 10-bis, Legislative Decree 286/98 (Italian Migration Law). This law states that a foreigner found during an irregular crossing of the internal or external border, or who has arrived in Italy following rescue operations at sea, is taken to these so-called hotspots (i.e. first reception points). These centres were specifically established by Law no. 563/1995 (the so-called “Puglia Law”) which provided for the establishment of centres for the gathering of Albanian migrants arriving on the Adriatic coasts at that time. In these centres, foreigners are also subjected to digital fingerprinting and photo identification, also for the purposes of EU Regulation 603/2013 (EURODAC⁷).

There have been numerous criticisms regarding this approach, and interventions of European case law sanctioning the irregularity of certain practices have not been amiss. As correctly pointed out by lawyer Guido Savio⁸ “The most critical point of the hotspot approach consists in the fact that they are enclosed areas, from which one cannot leave; this implies that the personal freedom and the freedom of movement of the people detained there are reduced (…) These are, therefore, situations of deprivation of personal freedom and movement without legal basis. Thus, the same factual situation that occurred in Lampedusa in 2011 is reproduced and that led the European Court of Human Rights (ECHR; in the well-known Khlaifia judgment, ECHR, G.C. 15.12. 2016) to establish that the detention of foreigners in closed facilities, even if it is ordered in the immediacy of rescue operations and in situations of extraordinary access of migrants – where no domestic law provides for the restriction of freedom in such centres – constitutes de facto detention, with no legal basis, contrary to Article 5, § 1, 2 and 4, ECHR“.

In spite of the issues highlighted, the hotspot approach has not only continued to be used but has proliferated to the extent that it has become one of the main tools to be used in light of the New European Pact.

And that is not all. In his analysis, Professor Campesi highlights two other particular issues that are perplexing and should be challenged. The first issue is the use of “fictio iuris”, which allows states to detain arriving migrants in places that do not correspond to the normal principles of territoriality provided by international standards.

In practice, in order to achieve the objectives of controlling migration flows and to manage related practices faster, especially for repatriations, a true “legal fiction” has been created, consisting in the fact that migrants who have not completed border procedures are considered as subjects who have not yet entered the territory of the country that is taking charge of them. In this way, a sort of extraterritoriality of the portions of national territory used to carry out border procedures has been created, which makes it possible to stop migrants from entering national territory even if they are, in fact, already on the territory of a specific State.

This “legal fiction” has important consequences in the legal field, especially with specific reference to the legal status that can be applied to these people, to the rights recognised to them by European law, etc. Within this extraterritorial space, which in Greece coincides with the islands for geographical and practical reasons, border procedures take place, which essentially consist of screening and asylum or repatriation procedures.

The second issue, on the other hand, is the provision of a series of reforms aimed at affecting the system of “taking back” by the country of first entry and which should limit the impact of “secondary movements” on the asylum systems of countries geographically further away from external borders.

Conclusions

The migration policies of individual states and of the EU as a whole have undergone significant transformation in recent years, and the New European Pact on Immigration and Asylum is only the culmination of a long process that has seen the Greek experience as a real experiment.

The management system of migration flows, partly anticipated with the reform of the repatriation directive⁹, aims to achieve faster processing and the control of migrants in detention centres. For this to happen, border zones are used to detain migrants in a legal condition that is difficult to define, a limbo of sorts of law and rights. “What has been experimented in Greece has influenced the content of the European Pact” and made it possible to apply the Greek model to the whole of Europe. “The hotspot approach model experimented in Greece, has become a good practice to be exported“.

1. Read the conference program (in Italian language)
2. Lecturer in Politics and Technology at the University of London https://www.gold.ac.uk/politics-and-international-relations/staff/tazzioli-martina/
3. Lecturer in Sociology of rights at the University of Bari https://www.uniba.it/ricerca/dipartimenti/scienze-politiche/docenti/prof.-giuseppe-campesi
4. «Il patto europeo sulla migrazione e l’asilo: c’è qualcosa di nuovo, anzi d’antico» di Chiara Favilli – Associate Professor of European Union Law, University of Florence
5. ibidem
6. Grecia, la fine dell’asilo. Reportage from Greek apartheid by Giulio D’Errico and Giovanni Marenda (Melting Pot, July 30, 2021)
7. https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=LEGISSUM:230105_1
8. https://www.dirittoimmigrazionecittadinanza.it/archivio-saggi-commenti/saggi/fascicolo-n-2-2021-1/761-l-incidenza-delle-misure-di-contrasto-della-pandemia-sulla-condizione-giuridica-dei-migranti-sbarcati-sulle-coste-italiane-il-caso-delle-navi-quarantena/file
9. Directive 2008/115/EC of December 18, 2008 https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:32008L0115&from=IT

Lawyer Arturo Raffaele Covella

Translated from Ialian by Orsina Dessi