Migration, Illegality, and the EU

by complexdevelopmentsblog

The contemporary European Union (EU) migration policy-making is based on a limited understanding of mechanisms of migration. The outcomes of this setting are amplified by the terms which are employed in migration policy-making. According to the latest statistics, 1.9 million people migrated into the EU from non-EU countries in 2014. The European Commission presents that 276,113 out of the 1.9 million migrants from non-member states were so-called irregular migrants, and an estimated 220,000 of them arrived by crossing the Mediterranean Sea. The number of irregular migrants and migration across the Mediterranean increased by 138% and 310% respectively compared to statistics from 2013. The European Commission employs these statistics as a call for action for increased border surveillance and stricter migration policies as the large percentage numbers, exceeding 100, are presented in the contexts of illegality and irregularity.

This essay discusses and analyses the European response to clandestine migration into the EU. Instead of focusing on one country’s sovereign policy making, the response is analysed on EU level. This essay presents EU policies and opinions and analyses them with tools from academic research on clandestine migration.

How the problem is created and the responses to it forced

Irregular migration as a term has replaced illegal migration in most academic and political discussions after a conclusion was reached that no human being can be judicially illegal [1]. Yet the word irregular contains and carries on the essence of the word illegal: an irregular person acts in violation of regulations and differs from the norm. This irregularity poses a threat if the migration has its starting point outside of the territory territory which constitutes the regular. As Shahram Khosravi notes, the people who differ from the norm are perceived as unclean and poor, but simultaneously they pose a risk to the existing political order and threaten to contaminate the (social) soil of the destination country as they evade any existing social categories and therefore our understanding of them. ‘Irregular migrant’ is therefore assigned a strongly negative connotation. In the EU context, the term also encapsulates both smuggled migrants and the victims of cross-border human trafficking; a judicially and analytically problematic juxtaposition with which entry can be denied. Ruben Andersson favours the term clandestine migration to describe human migration which eludes or attempts to elude state sanctioned control of migration. This term encapsulates therefore the smuggling and trafficking of migrants, and all other entry into a territory by irregular means. The term ‘clandestine’ is relatively neutral yet very analytical, and it is therefore preferable over other options.

Clandestine, irregular, and illegal migration all refer to the unwanted: the unwanted results of unwanted migration. Yet, in the EU context, it remains unclear what the concrete unwanted results might be. In March 2000, the European Commission reviewed the Amsterdam Treaty which aims to develop the EU into an area of security, freedom, and justice, and concluded that clandestine migration falls under the Amsterdam Treaty. The treaty also concluded that its consequences mostly relate to economic exploitation of the migrants, labour exploitation, and to the existence of criminal networks within the EU. The consequences of clandestine migration have later been elaborated to include risks and dangers the migrants are vulnerable to: violence by the smugglers and traffickers during their journey, and the risk of drowning. The public frequently expresses concerns about the smuggled migrants’ possible connections to terrorism. However, Frontex, the EU agency responsible for European border management, concluded in their 2015 Annual Risk Analysis that “Frontex is not in a position to identify, nor does it have any information that suggests, any nexus between terrorist travel and irregular migration routings and/or facilitation networks.” The same report speculates on the possibility that EU-based fighters might adjust their modi operandi as EU migration policies change, and states that foreign radicalised fighters may pose a future challenge for border agencies. The OECD reports that terrorist networks have turned to clandestine migration operations in order raise funds for their activities, and that terrorists have been smuggled into the EU among other migrants, but lack sources for the latter statement. The illegality aspect of clandestine migration and criminal networks are emphasised in most reports and opinions by and for the organs of the EU [2].

Illegality of clandestine migration and the risks involved in it to the migrant are outlandish arguments for EU policy making. They are used to describe border-drawing in geographic areas, and between the people with an entitlement to a territory and those risking to contaminate it. They also reflect the unanticipated consequence of globalisation having freed the movement of capital and goods while the movement of people remains controlled by states and supranational institutions. The latter point becomes visible in the EU’s action and policy plans which aim to ease the migration of highly skilled labour force through an improved Blue Card Directive on the one hand, and to deploying returned clandestine migrants as a deterrent on the other. Paradoxically, the means taken by the EU to curb the numbers of clandestine migrants into its territory has led to an increase in clandestine migration. This paradox can be understood through Andersson’s “illegality industry”: as clandestine migration is understood as illegal, means must be taken by others to successfully transport people without being caught, and by others to prevent this. This facilitates an arms race on both sides and creates sources of income in forms of official and unofficial jobs.

The problem of treating all clandestine migration as the same

The EU perceives clandestine migration as “a complex crime” which “has increased exponentially over the past year” and has therefore made “the fight against migrant smuggling [a] priority”. Drafting policies requires reflection on responses to the issue, and the context of complex crime assigned to clandestine migration in the quotes contains problems which relate both to the understanding of the ‘crime’, and responses to it later. I will now discuss three such problems.

The first problem is that EU migration policy does not differentiate enough between the different migration-related irregularities. Hein de Haas argues two points about the misconceptions in the EU migration legislation: first, that the separation between legal entry and visa overstay which constitutes the majority of the irregularities of migration is not appreciated enough, and second, that both migrant smuggling and trafficking in persons are categorised and therefore addressed in the same way. The EC announces that “ruthless criminal networks organise the journeys” and that these organisations  “often expose migrants to life-threatening risks and violence”. The framing of migrant smuggling as a violent act committed by ruthless criminals reduces the complex act to a despicable crime. It arms the policy makers with powerful tools and sanctions them to act against ‘the crime’ because it is clear that violence and life-threatening dangers should be avoided and exposing people to them is ruthless. However, people voluntarily turn to smugglers for various reasons, to gain entry and to gain exit. The sizes and levels of organisation of smuggling networks are likely elaborated, and involve peoples living near border areas who sometimes are involved in assisting migrants to cross as a source of extra income, and while the conditions under which people are smuggled might be inhumane it is not in the interests of the smugglers to use violence or act ruthlessly towards the clients in the extent that is believed in Europe. Human trafficking, on the other hand, involves coercion, extortion, or violence by the recruiters or traffickers towards the trafficked persons. Trafficking in persons exploits people’s vulnerabilities to expose them to exploitation, and aims to stop the trafficked from escaping. In a stark contrast with migrant smuggling, human traffickers look for long-term profits from their victims and do not necessarily expect payments from their victims, while smugglers want payments from their clients and have it in their interest to transfer the clients quickly. Furthermore, human trafficking does not necessarily have to be transnational, while migrant smuggling always involves crossing national borders.

This leads us to the second problem which is the transferring of risks of clandestine migration to the migrants. By being aware of the dangers related to crossing the Mediterranean Sea with often unsuitable vessels, yet making safe means of migrating into the EU exclusive to few educated persons, the EU and its border managing organisations can claim that urgently needed options of safe passage (e.g. by obtaining a visa and travelling by airplane) into the EU are offered but not used. The blame is also placed on the migrants with an irregular status already residing in the EU by warning about the risks of possible labour exploitation. Undocumented people and migrants with an irregular status seek work in the gray economy as it is often the only opportunity. Workers in the grey economy are, of course, not protected and are vulnerable to exploitation – yet this risk has to be taken as it is the only option. This way the destination countries can steer attention away from the responsibilities of improving working conditions and monitoring employers. While this is in fact addressed as a side issue, the focus is on the prevention of arrival of clandestine migrants who are blamed for increasing the amount of illegal practices in the labour market.

The third problem is in the prevention measures taken by the EU against clandestine migration, and how it fails to recognise the position of the undocumented migrants already residing in the EU. The EU Action Plan Against Migrant Smuggling aims to “counter and prevent migrant smuggling”, “address the root causes of irregular migration”, and bring to justice and seize the assets of smugglers. Also the EU Strategy Towards the Eradication of Trafficking in Human Beings states as its priorities, among others, the prevention of human trafficking, increased identification of victims of human trafficking, and the increased prosecution of traffickers. Most undocumented migration is labour migration, and most undocumented migrants increase the labour force for industries where they are needed. The EU treats an existing informal industry as a possible pull-factor for clandestine migration, and responds to this in two ways. First, undocumented migrants are made a target for inspections and monitoring in the formal and informal industries. Second, fast prosecutions and deportations are used alongside information campaigns in the countries of origin to discourage clandestine migration to Europe. This is problematic because it strengthens the inequality principle which allows only a small number of high-skilled migrants to enter. Furthermore, although the victims of human trafficking are protected from deportation in the law and are entitled to residence permit, health care, and protection if they agree to cooperate with the law enforcement in the destination country to bring their traffickers to justice, they are still vulnerable to deportation and further exploitation as they may not be aware of their rights and may be too afraid or unable to cooperate.

The prevention measures and deportation measures are designed to be implemented in international and intercontinental scales to reach individuals planning to migrate before they begin their journey. The EU Action Plan Against Migrant Smuggling presents a plan to employ social media and existing migrant diaspora in Europe to develop and spread a counter-narrative to the benefits of migrant smuggling (and effectively migration) to Europe. The intercontinental aspect of migration prevention is emphasised in the negotiations between the EU, transit countries, and countries of origin with an aim to “convince third countries to take back their nationals that are irregularly present in Europe, which is an international obligation”.

Picking and choosing words and people

Contemporary EU migration and border policies in Ruben Andersson’s terms reflect a strong urge to shut out the unwanted. Justification for the actions to pick-and-choose the ones who may enter and to deny entry from the others is gained through a careful choice of words, which are employed to describe an unwanted phenomenon and unwanted people. Academic literature on the scale, motives, and results of undocumented migration are in a stark contrast with the scale of EU’s actions against it. Strong sentiments about the contamination of the existing society are translated into a judicial language which frames the migrants as possible risks and illegal, the people who migrants meet along their journey as organised and ruthless criminals, and a certain type of migration as a phenomenon which is illegal, breeds illegality in the destination, and requires urgent counter-measures. Failing to perceive the dynamics of the different parts of the illegality industry results in misguided  responses by the EU which steer the attention away from the European labour market’s needs for more workers and a need for further improvements in the European naturalisation policies. The current policies furthermore disregard the motivations people have to migrate and the reasons why people rely on clandestine means of migrating.

~Otso Rajala


[1] I deemed it important to include this obvious statement in the essay because even in late 2016 and early 2017 quite straightforward terms are still mixed in the Nordic and North-American media and political rhetoric. For academic discussions on the topic, see this and de Genova, N.P. (2002). Migrant “Illegality” and Deportability in Everyday Life. Annual Review of Anthropology.

[2] E.g. here, here, here, here.

Bibliography and further reading

Andersson, R. (2014). Illegality Inc. Clandestine Migration and the Business of Bordering Europe. Berkeley: California University Press.

de Haas, Hein (2008). Irregular migration from West Africa to the Maghreb and the European Union: An overview of recent trends. Geneva: International Organization for Migration.

Frontex (2015). Annual Risk Analysis 2015. Risk Analysis Unit: Warsaw.

Khosravi, S. (2010). “Illegal” Traveller: An Auto-Ethnography of Borders. New York: Palgrave Macmillan.

Mahdavi, P. (2011). Gridlock: Labor, Migration, and Human Trafficking in Dubai. Stanford: Stanford University Press.

Näre, L. (2009). The making of ‘proper’ homes: Everyday practices in migrant domestic work in Naples. Modern Italy, 14(1), pp.1-17.

OECD (Organization for Economic Cooperation and Development) (2015). Corruption and the smuggling of refugees. OECD Migration Policy Debates, 7, September 2015.

Palmiotto, M.J. (ed.) (2015). Combating Human Trafficking: A Multidisciplinary Approach. New York: CRC Press.