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Sun. April 14, 2024
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EU’s Eastern Border and Inconvenient Truths

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By Dr. Aleksandra Ancite-Jepifánova

Securitization of migration in the EU after the Russian invasion of Ukraine

The increased securitization of migration in the EU is all but a new phenomenon that has been discussed in a multitude of fora – particularly in the context of 9/11 and its aftermath. The Russian invasion of Ukraine in February 2022, alongside with the EU’s confrontation with Russia’s ally Belarus, however, has opened up a whole new chapter in this area.

The developments in EU Member States sharing a land border with Belarus and Russia – namely, Poland, the Baltic States and Finland, - give reason for particular concern and, perhaps, have no analogy in the EU’s history. Highly politicized conflict-related securitization narratives have rarely found their way so swiftly into Member States’ domestic migration and asylum laws, leading to open and far-reaching violations of EU and international human rights law. Hardly ever before have ill-defined concepts and indiscriminate assumptions been so broadly accepted and used to shift from an individual-focused approach to blanket measures stigmatizing, dehumanizing, and excluding entire groups. And, last but not least, rarely before have radical changes of this kind received so little criticism from civil society, including academics, - a deeply unsettling and dangerous trend.

EU-Belarus border crisis

The crisis at the EU’s external border with Belarus and, more recently, Russia, has been the most salient example of this process. The origins of the current situation date back to summer 2021 when, following the EU’s decision to impose sanctions on Minsk, Belarus started actively issuing visas to nationals of Middle Eastern and African countries, allowing them safe passage through its territory and no longer preventing irregular border crossings into the EU.

In response, Poland, Lithuania, and Latvia – three EU Member States bordering Belarus – took an unprecedented step and adopted long-term, far-reaching, and blanket domestic legislative measures that severely restrict the right to seek asylum and openly authorize pushbacks – in direct breach of EU, international refugee, and human rights law. As a consequence, EU’s border with Belarus has become a highly securitized exclusion zone where protection seekers are being continuously exposed to various types of inhuman and degrading treatment (e.g., forced to remain in the forest for up to seven months) and where deaths, disappearances, and amputated limbs are an everyday reality.

The rationale, used by Member States for excluding the racialized ‘other’ from human rights protection, has been the so-called ‘migrant instrumentalization’ by the Belarusian and Russian regimes. Persons crossing from Belarus are framed as a security threat and an element of ‘hybrid warfare’ against the EU, a dehumanizing narrative that has intensified following the Russian invasion of Ukraine. In June 2023, Latvia further cemented the ongoing practice of pushbacks in domestic law, following a similar move by the neighboring Lithuania – irrespective of a 2022 CJEU ruling that declared such approach incompatible with EU law. Most recently, the instrumentalization discourse has also been taken up by Finland that, first, amended its Border Guard Act and then temporarily closed all its land border crossing points with Russia – as a reaction to increasing numbers of foreign nationals attempting to cross from Russia and apply in Finland for international protection

‘Migrant instrumentalization’ and realities on the ground

The ‘migrant instrumentalization’ concept has become so deeply embedded in political, media and, regrettably, even academic discourses, that is hardly ever challenged at all. In essence, it indiscriminately implies that every asylum-seeker crossing from Belarus or Russia has been instrumentalized and therefore, can be denied their fundamental rights.

This approach, however, is highly problematic on many levels. First and foremost, it diverts attention from the main reasons of why people undertake dangerous and irregular routes to seek protection in Europe – namely, global passport inequality, the EU’s externalization and containment policies, and the consequent absence of legal routes to seek protection. For those holding an Iraqi, Syrian, or Afghan passport it is nearly impossible to obtain a visa for Europe; in most cases, rendering the deadly Mediterranean route their only option. The third-country nationals involved make up a highly heterogeneous group and frequently belong to categories with relatively high asylum-recognition rates. Examples include Afghans fleeing the Taliban, Syrians fleeing compulsory military service, Iranians fleeing political persecution, and Yazidis, an Iraq-based ethno-religious minority that was persecuted by ISIS and has been living in protracted displacement for nearly a decade.

Second, there is a significant gap between the generalized and simplified ‘instrumentalization’ discourse and realities on the ground. While in summer and autumn 2021, Belarus indeed appears to have used migration as a political leverage against the EU, this no longer seems to be the case. Following pressure by the EU, foreign airline companies or governments, including Belarus, introduced travel restrictions on nationals of certain Middle Eastern countries. Already in November 2021, Turkey banned Syrian, Yemeni, and Iraqi nationals from flying to Minsk. The Belarusian state airline Belavia equally announced it would no longer carry nationals of these countries to Belarus, whereby hundreds of Iraqi nationals were returned from Minsk to Iraq via so-called repatriation flights.

My empirical research suggests that most individuals arriving at the EU’s external border currently hold Russian, not Belarus, visas that are issued for purposes such as tourism, study, work, or private visits. NonEU nationals are typically brought to the EU’s border with Belarus by intermediaries of diverse backgrounds who are non-state actors. My research also shows that Belarusian authorities now increasingly attempt to intercept people who try to cross into the EU, detain, and return them to Russia. Many people had also previously resided in Russia for prolonged periods of time (either regularly or irregularly, including with expired visas) before deciding to seek protection in the EU.

Media reports reveal that people in such situations were also among those who recently attempted to cross from Russia into Finland. The latter group also included people who were brought to the Russian border by fixers following previous unsuccessful attempts to cross into the EU from Belarus. Further, there are people who arrived at the Belarus border by land via Russia and Central Asian countries (e.g., from Afghanistan), had never procured Belarusian or Russian visas or had any other connection with the Belarusian or Russian authorities.

Misleading numbers and disproportionate response

The Member States’ responses to the issue are highly disproportionate not only from a legal, but also from a public policy perspective. The number of individuals attempting to enter the EU through Belarus is generally very low and nowhere near the number of arrivals via the Mediterranean, let alone the figures of 2015-16 when the EU received over 2.5 million asylum applications, or the millions of Ukrainian nationals welcomed by the EU since the start of the Russian aggression.

In 2021, at the peak of the crisis, Polish border guards recorded fewer than 40,000 ‘attempts of illegal border crossings’ from Belarus, with the numbers having dropped sharply in 2022 and 2023. Moreover, it is crucial that the number of recorded border crossing attempts does not represent the actual number of people crossing the border, as many are pushed back and forth multiple times, inviting this abuse of statistics by the relevant governments. For example, in the period from August 2021 to April 2022, Latvian authorities claimed to have registered over 6,600 border crossing attempts. Yet, my analysis suggests the actual number of people behind these figures was as low as around 250.

Russian citizens as a security threat

Following the Russian invasion of Ukraine, individuals holding Russian passports have equally become target of legislative changes, specifically designed by Member States to limit entry and residence rights of this group. Evidence- and individual-based approaches towards this category has been substituted by the WWI ‘enemy alien’ logic where Russian citizens are portrayed as a security threat and assigned collective responsibility for Putin’s actions.

The most visible EU-level step in this regard has been the suspension of the EU-Russia Visa Facilitation Agreement in September 2022, following which Russian citizens face longer visa processing times and extra checks. Moreover, Member States are allowed to deprioritize applicants whose reason for travel is not considered ‘essential’. Poland, the Baltic States, and Finland, however, went much further and – in breach of the Schengen Borders Code – unilaterally introduced a nearly absolute entry ban on Russian citizens, including holders of short-term Schengen visas issued by other Member States.

Such measures have had profound implications for the persons involved and have targeted a much larger group of individuals than those who, in the words of EU foreign policy chief Josep Borrell, ‘travel[led] to the EU for leisure and shopping as if no war was raging in Ukraine.’ The first group particularly disadvantaged in this regard are those fleeing the oppressive regime, all the more so because since February 2022 the human rights situation in Russia has significantly deteriorated. Among other categories, the entry restrictions affect Russian citizens fleeing military draft whose options to claim protection in the EU are now extremely limited – particularly given that several Member States have expressly refused to issue humanitarian visas to this category. The second group severely impacted by the restrictive measures are Russian family members of EU citizens and residents, including Ukrainian refugees living in the EU – contrary to the governments’ reassurances that this would not be the case.

Dual citizens and long-term EU residents

The climate of suspicion has been particularly omnipresent in Latvia and Estonia, where the events in Ukraine have exacerbated traditionally strong fears of potential Russian aggression towards these countries. Apart from banning Russian citizens from entry, such anxieties have manifested themselves in targeting other groups, including Ukrainian citizens travelling to the EU through Russia and their own Russianspeaking population.

Since February 2022, Estonia, for instance, has refused entry to hundreds of Ukrainian passport holders who had stayed in Russia for longer periods of time or had dual Russian-Ukrainian citizenship. This was done irrespective of the fact that many of them travelled to the EU from the occupied territories, fell within the scope of the Temporary Protection Directive, and/or might have been pressured or actively encouraged to acquire Russian citizenship for practical reasons.

Further, in September 2022, the neighboring Latvia introduced amendments to its Immigration Law targeting around 25,000 Russian citizens living in the country on the basis of a permanent residence permit. Those belonging to this group (unless they are aged 75 or older or diagnosed with certain health conditions) are now required to pass a Latvian language proficiency test at a minimum level of A2. It is expected that those who fail to do so will lose their right to reside in the Latvia and will be required to leave the country.

The amendments primarily affect former Latvian non-citizens* who had previously acquired Russian citizenship to be able to receive a Russian pension. Most of them are elderly people who live in a predominantly Russian-speaking environment and now risk being removed to Russia despite either having been born in Latvia or lived there for decades. The legislative changes not only have caused severe anguish among this group but also arguably undermine the principle of legal certainty and come into apparent tension with the ECtHR jurisprudence on the right to respect for private life, protected under Article 8 ECHR. The government policy, however, was recently upheld by the Latvian Constitutional Court that justified it by a security threat emanating from Russia and, potentially, from its passport holders.

The high cost of securitizing migration

A distinctive feature of the current developments is that these have been tacitly or explicitly accepted at the EU level, irrespective of open violations of EU law. In the context of the EU-Belarus border crisis, for instance, the European Commission not only failed to initiate infringement proceedings against the Member States involved, but also appears to have embraced the ‘migrant instrumentalization’ narrative. Moreover, the last two years have also seen recurring efforts to introduce the ‘migrant instrumentalization’ concept into EU asylum law – currently as part of the New Pact on Migration and Asylum.

This has created a situation where, in essence, the governments can rely on the Russian invasion of Ukraine to justify any types of derogations from the existing migration and asylum framework. Even more worrisome, this is accompanied by increasing attempts to silence and stigmatize critical voices by various means, including launching smear campaigns and bringing criminal charges against human rights defenders, thus reinforcing the culture of silence and self-censorship. In Latvia, for instance, there are currently criminal charges pending against human rights activists who travelled to the border area to ensure that five Syrian asylum-seekers receive humanitarian assistance in line with interim measures issued by the ECtHR. Moreover, even foreign-based researchers and international organizations criticizing the Latvian policy towards asylum-seekers are heavily stigmatized, accused of having connections with the Kremlin or playing into the hands of Russian propaganda.

Given the current political climate, the future looks rather bleak. Derogations from EU and international refugee and human rights law have become a norm, and any shift towards restoring the Rule of Law in this area is highly unlikely. The current crisis offered the EU an opportunity to demonstrate its strength by holding firm to its founding values, upholding human rights standards, and dealing with potential security risks on a case-by-case basis within the existing legal framework. Instead, the EU appeared ready to sacrifice its principles and undermine the Rule of Law in the name of security – even though in reality security gains from these measures are all but clear.

*The ‘non-citizen’ status was created for former Soviet citizens who had moved to Latvia after it was incorporated into the Soviet Union in 1940, and their descendants. ‘Non-citizens’ are guaranteed the right to stay yet denied the right to vote and to work in public se

Dr. Aleksandra Ancite-Jepifánova is a researcher in European and comparative migration, asylum and nationality law. She holds a PhD in law from Queen Mary University of London and is currently a Visiting Fellow at the Centre of Law and Society at Cardiff University. She is also a Research Affiliate with the Refugee Law Initiative, University of London.

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