The EU’s external asylum policy in Ukraine

La politique externe d'asile de l'Union Européenne en Ukraine

Irina Mützelburg (1, 2)

1 CERI - Centre de recherches internationales (Sciences Po, CNRS)
2 CMB - Centre Marc Bloch

Research conducted in the years 2000 before the central and eastern European enlargements has shown that the EU used readmission agreements and the notion of safe third country to shift the burden of asylum cases to its Eastern neighbours. Several authors now claim that the EU is repeating this practice in the new neighbouring states such as Ukraine. This cannot be completely confirmed by the present contribution. The EU has indeed concluded a readmission agreement with Ukraine which allows the EU to lawfully extradite irregular migrants to Ukraine. Legally, this agreement cannot be applied for asylum seekers in violation of the Geneva Refugee Convention. However, the readmission agreement facilitates unlawful practices of Slovak border guards who refuse to register asylum seekers and send them back to Ukraine through the accelerated procedure. There are hints, that such unlawful practices are even more facilitated by joint patrols of Slovak and Ukrainian border guards. Joint patrols of border guards at EU borders are strongly supported by the EU and are likely to be expanded in the future. The consequences of joint patrols at EU borders for the right to seek asylum in the EU need to be further investigated. The second instrument which had been used by EU member states for the externalisation of asylum cases to CEECs is the notion of safe third country. This notion is not used to send asylum seekers back to Ukraine though. Indeed, Slovak border guards do not refer to this notion to legitimise the extradition of asylum seekers as they deny that they send asylum seekers back and do not record the wish to apply for asylum. It is possible that EU member states are not officially using the notion of safe third country for Ukraine given the normative power of UNHCR which regularly warns that Ukraine should not be considered a safe third country. However, the EU might apply other means in order to keep asylum seekers in Ukraine and prevent them from reaching the EU so that the above mentioned instruments for legal return are not necessary. This corresponds to what is shown for instance by Thomas Gammeltoft-Hansen: asylum destination states try to extraterritorialise asylum and migration control hoping to avoid constraints of international asylum and human rights law. A clearly restrictive approach consists of pushing, encouraging or supporting Ukrainian border guards to prevent third country nationals from approaching and crossing the EU border. This method is combined with detention of apprehended migrants in Ukraine. These groups of apprehended and detained migrants contain a share of potential asylum seekers who do not gain access to an asylum procedure in the EU. Moreover, their chances of obtaining asylum in Ukraine are even lower than for other asylum seekers because Ukrainian authorities consider them as economic migrants. Furthermore, it needs to be noted that the EU has invested considerable attention and funding into the establishment of a functional asylum system in Ukraine. This could be interpreted as either a restrictive or a preventive long term strategy to decrease asylum applications in the EU. Potential underlying rationales could be: (a) The EU is trying to declare Ukraine a safe third country in the long run to be able to send back asylum seekers who had transited through Ukraine or (b) The EU is trying to improve the situation of asylum seekers and refugees in Ukraine so that staying there seems more attractive to them than moving on to the EU. The support to asylum systems outside of the EU is special in the sense that it accommodates both human rights and security oriented interests and norms in the EU. More than the mere return of asylum seekers from the territory of the EU, the externalisation of asylum policies by the EU refers a range of different activities of more or less restrictive nature, some of which only serve externalisation purposes in the long term. Externalisation of asylum policies to Ukraine needs to be examined as a multi-level approach which involves a variety of actors with different norms and interests. UNHCR, for instance, tries to attract the attention of the EU to asylum issues in Ukraine in order to maintain or increase its role and budget there. A series of asylum NGOs in Ukraine depend indirectly on EU funding and have often only been created due to the availability of this funding. Ukrainian state border guards see their role and budget increase thanks to EU interest in their control. While these actors’ norms on asylum differ strongly, they are all involved in the externalisation of asylum policies to Ukraine. The implications of these activities for asylum seekers and refugees at and outside of the EU’s borders differ. On the one hand, the EU support for asylum in Ukraine has at least partially improved the situation of asylum seekers and refugees in Ukraine. On the other hand, only a minority of those stuck in Ukraine due to the restrictive measures of EU member states at the border can access protection, a regular status and decent living conditions in Ukraine.

Mots clés: European Union; Ukraine; migration; asylum; external dimension; externalisation

Domaines: Science politique

Irina Mützelburg. The EU’s external asylum policy in Ukraine. 9th Pan-European Conference on International Relations: The Worlds of Violence , EISA, Sep 2015, Giardini Naxos, Italy. ⟨halshs-01246246⟩