Europeisk migrasjonskontroll:

”frihet, sikkerhet og rettferdighet” – for hvem?

Katja Franko Aas

Institutt for kriminologi og rettssosiologi

Universitet i Oslo

http://www.jus.uio.no/prosjekter/cctc/

Heidi Mork Lomell: Videoovervåkning av det offentlige rom

Helene Oppen Gundhus: IKT og politiarbeid

Katja Franko Aas: Bruk av teknologi i grensekontroll

Kriminalitetskontroll, risiko og teknologi

The border

• territorial demarcation – defining limits of the sovereign state,

national identity and membership

• global mobility is a highly stratified phenomenon

• globalization = a world in motion, the task of the border is to

distinguish between ‘good’ and ‘bad’ mobilities

• not a wall, but a membrane

• The EU border: de-nationalization of state sovereignty

• De-localizing the border & policing at-a-distance

Integrated border management (IBM)

1. Border controls (checks and surveillance)

2. Detecting and investigating cross-border crime in co-operation with relevant law enforcement authorities

3. The four-tier access control model (measures in third countries of origin / transit, cooperation with neighbouring countries, measures at external borders, measures within the common area of free movement)

4. Inter-agency cooperation in border management (customs, police, national security and other relevant authorities)

5. Coordination and coherence at the national and transnational level

From 1st to 2nd generation of IBM – interoperability: EPN (European Patrols Network), EUROSUR, entry / exit system, registered traveller system

‘Global Approach to Migration’

EU border / mobility governance

poly-centric, multi-level governance (trans-border, regional,

sub-state, privatised)

enlisting private actors in the task of border controls

(airlines, employers…)

EU treaties and conventions (Amsterdam, Schengen, Dublin,

Prüm conventions, Tampere decision, Hague programme…)

Transnationalization of policing (liaison officers, Frontex &

RABIT, Europol – ‘area of Freedom, Security and Justice’)

de-territorialisation of the border: governance-at-a-distance

‘The border is everywhere’ (Lyon, 2005) - biomeric ID cards,

visas, passports

The external dimension: The Global Approach to Migration

and ‘mobility partnerships’

CenFrFrontralised Records of Available Technical Equipment (CRATE): Initial Offers

fixed wing aircraft21

vessels117

3 Mobile radar units

23 Vehicles

71 Thermal / Infrared cameras

33 Mobile carbon dioxide detector

8 Heart beat detectors

1 Passive millimeter wave imager

Pieces of border control equipment, including:392

helicopters27

Grenser for solidaritet

A major problem has been the failure of some

Member States actually to make available the

resources they have promised. In July 2007 the

Central register of Available Technical

Egquipment (CRATE) was impressive - on paper –

and included 21 fixed wing aircraft, 27 helicopters

and 117 vessels. Of these, 32 were patrol vessels

pledged by Italy, yet […] not one Italian vessel

took part in operation NAUTILUS.

(House of Lords 2008: 35)

Externalisation of EU border controls

• Frontex: moving of the border to the outside (extra-territorialisation of

control)

• Global approach to migration built on billateral agreements and

mobility partnerships

• Outsourcing responsibility to non-EU states and authorities

• ‘Pre-arrival border controls’ built on the ‘presupposition of illegality’

(Carrera, 2007) – not treating individual cases but risk categories

• What are the consequences?

1. Human rights considerations & the principle of non-

refoulment

2. Principle of legality and the applicability of EU law

(Schengen Borders Code: the right to appeal, written

refusal, etc)

In Kufra the delegation visited the detention camp for illegal immigrants where 130 sub-Saharan citizens were detained. The condition of this structure can be described as rudimentary and lacking in basic amenities.

The mission was informed that, during 2006, the Libyan authorities had apprehended 32,164 illegal immigrants and had repatriated 53,842 during the same period. Furthermore, some 60,000 illegal migrants were currently detained.

Source: Report on the Frontex-led mission to Libya 28 May-5 June 2007

Frontex statistics and measures of success

Name of Activity

Illegal Migrants diverted back /

deterred

Facilitators arrested

Interviews carried out by experts

deployed by Frontex

HERA 2008 4791 294 1428

MT 2321

IT 16098

Total number of arrivals

7544

NAUTILUS 2008

7930 15

• Interviews carried out by experts deployed by Frontex

This category includes the number of interviews carried out by experts deployed by Frontex.

These experts are sent to the Member States hosting a Joint Operation in order to help interviewing migrants that illegally crossed the border. The interviews aim at gathering information on facilitation networks and details of the journey of migrants that can help improving the effectiveness of the Joint Operation.

The experts do not interview persons that have asked for asylum.

Source: http://www.frontex.europa.eu/newsroom/news_releases/art40.html

Criminalization of migration

• hybridization of administrative, penal, foreign relations and

military measures

• Criminalisation: making an activity illegal & linkage between the

activity and security

• Cholewinski :

a) criminalization: making an activity illegal by the imposition of

penal sanctions (sanctions against air carriers, penalization

of facilitation)

b) The culture of suspicion and distrust surrounding the

movement of 3rd country nationals (‘illegals’ /’irregulars’)

• Crime: a moral wrongdoing (mala in se) or a prohibition (mala

prohibita)

Criminalization of migration

•Securitization: discursive connection between ‘illegal migration,

terrorism and organised crime’

• priority given to law enforcement: the case of trafficking (victims

not given protection as victims but as witnesses in a criminal case)

• association of migration with the filed of crime and policing : VIS,

SIS II, Eurodac – central role of fingerprinting and biometrics

• the strategies of risk minimalisation and punitive preemption (‘

return directive’)

• detention centers resembling prisons

• Dilemmas of international co-operation & the principle of mutual

recognition: what are the consequences of poor decision-making in

third countries?

What is a prison?

Breakdown of Wanted Persons

Article of Schengen Convention• 95 (Extradition to a Schengen State) 15,460 • 96 (Third-country nationals who should bedenied entry) 751,954 • 97 (Missing persons—adults) 19,855• 97 (Missing persons—minors) 19,156• 98 (wanted as witnesses, for prosecution orfor enforcement of judgments) 45,189 • 99(2) (serious criminal offences) 31,013• Total 882,627

Source: House of Lords Report (2007) Schengen Information System II

Biometrics: coding the immigrant bodies

• Eurodac, SIS II, • VIS (the world largest

biometric database?)• Entry / Exit system• History of fingerprinting: crime,

colonialism and immigration (Cole 2001)

• ’The body does not lie’ (Aas 2006)

• Foreign prisoners (% of total prison population):

Greece 43,9%

Belgium 42,1%

Italy 37,6%

Spain 35,1%

Netherlands 30,5%

Libya 30,5%

Sweden 27,5%

Germany 26,9%

Norway 24,1%

France 19,2%

UK 13,4%

Source: World Prison Brief: http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/

Whose security?

• securitization of migration focused on the nation-state rather

than on human security

• Human security approach: ‘secure states do not automatically

mean secure people’

• Extraterritorial border controls: state / EU security at the

expense of migrant / human security?

• Risk analysis = state risk, not migrant risk

• a need to challenge the domestic – international dichotomy –

against methodological nationalism

• What are our ethical responsibilities for at-a-distance security

practices?

Whose justice?

• Justice built on extensive use of information systems and

surveillance – ‘autopoietic justice’ (Luhman)

• Self-referential, built on one-way communication

• biometrics: information inequality, difficult to argue against

(Schartum & Bygrave 2008)

• Who is the subject of justice?

• ‘the injustice of mis-framing’ (Fraser, 2005)

• boundary drawing and ‘the right to have rights’ (Benhabib, 2004)

• Cosmopolitan theories of justice: creating new concepts of

membership not based on nation-state citizenship

• defending boundaries - re-creating the colonial subject?