The externalization of migration controls to third countries is one of the central pillars of the European Union’s (EU) migration policy (EC 2015). Since the late 1990s, the EU has sought to outsource “migration management” to third countries in order to prevent irregular migrants, including asylum seekers, from reaching EU territory (Boswell 2003; Casas et al. 2011). By supporting measures aimed at stopping EU-bound irregular migrants in transit countries in North Africa and the Middle East, EU member states wanted to avoid any legal obligations towards potential asylum seekers (Casas-Cortes et al. 2016; Mitsilegas 2015; MSF 2015).Footnote 1 One of the North African countries the EU included into its plan to create an effective pre-frontier “buffer zone” against irregular migration was Tunisia, historically a transit country for irregular migrants trying to reach the EU from other parts of Africa, a sending country of Tunisian citizens seeking better livelihoods in the EU (Boubakri and Mazzella 2005; Natter 2015; Romdhani 2016), and, more recently, a destination country for migrants, mostly Libyans, fleeing from conflict zones (IOM 2014).
The agreements on migration signed by Tunisia and the EU, and the bilateral agreements between Tunisia and several European countries, including Italy, France, Germany, and Switzerland (GDP 2014; Mazzoleni 2016), reveal that EU member states outsourced, or they still seek to outsource, to Tunisia the following “migration management” operations. First, one of the key objectives pursued by the EU is to use the Tunisian security forces to prevent irregular migration from Tunisia to the EU by stopping “boat people” trying to reach Italian shores from Tunisian territory (Frontex 2013). In addition, EU member states, in particular Italy, want the Tunisian security forces to intercept at sea boats with irregular migrants who embark on their journey towards the EU from Libyan territory. The EU expects Tunisia to take in intercepted irregular migrants from Libya and process their asylum claims on Tunisian territory (Traynor 2015, GDP 2015). In early 2017, Italy, backed by the EU, was close to sign an agreement with Tunisia to take in 200 intercepted “boat people” from Libya per month (Fubini 2017).
Second, the EU would like to see Tunisia cooperate, via Frontex, in the collection and sharing of intelligence on migration flows from Tunisia to EU territory. Although the EU included Tunisia, in 2013, into the Seahorse Mediterranean Network, a program aimed at establishing a communication network to exchange information on irregular migration between North African countries (e.g., Libya, Egypt, Tunisia, and Algeria) and EU countries, EU officials still had to persuade Tunisia, in early 2017, to actively participate in the program (EMHRN 2013; EC 2017b).
Third, the EU put pressure on Tunisia to enact legislation criminalizing migration-related activities (e.g., smuggling of migrants and human trafficking) in order to limit the assistance provided to irregular migrants passing through Tunisian territory towards the EU (Cassarino 2014).
Fourth, EU member states exerted pressure on Tunisia to accept the return of Tunisian citizens who irregularly migrated to the EU and third country citizens who reached the EU by irregularly transiting through Tunisia. A number of EU countries, for example Italy, France, and Switzerland, have signed with Tunisia bilateral agreements on readmission (Mazzoleni 2016). In addition, Tunisia signed with the EU, in early 2014, the Mobility Partnership Agreement, a framework for cooperation on migration that included a provision on readmission (UGTT et al. 2014).
The EU was able to impose the externalization of migration controls on Tunisia by linking effective “migration management” to the substantial financial assistance provided by the EU to Tunisia. Being Tunisia’s most generous provider of aid and its most important trading partner gave the EU considerable leverage in the process of defining key aspects of Tunisia’s fight against irregular migration (Mazzoleni 2016). On the one hand, the EU provided financial assistance for the political, economic, and social development of Tunisia. This kind of support became particularly important for Tunisia after the toppling of the Ben Ali regime in 2011 when the country entered into a period of prolonged political instability and deteriorating economic conditions. In the post-revolutionary period, from 2011 to 2016, EU assistance to Tunisia amounted to about € 2 billion in total, which was used to support the transition to a democratic system and achieve the country’s fiscal stability (EC 2016). In addition, European financial institutions have granted loans worth € 2.6 billion for infrastructure, private sector development, and water sanitation projects in Tunisia (ibid.). Taking advantage of Tunisia’s vulnerable position, the EU used its financial support for the democratic transition as leverage in the process of convincing the Tunisian authorities to sign the Mobility Partnership Agreement, a declaration that defined the general objectives of a common “migration management” strategy. During the pre-revolutionary years, the Ben Ali regime was able to avoid signing such an agreement, but the fragile post-revolutionary political elite needed the backing of the EU and thus had little choice but to accept the EU strategy on preventing irregular migration (Limam and Del Sarto 2015; Eyster and Paoletti 2016).
On the other hand, EU member states also used visa facilitation programs for Tunisian citizens seeking work in the EU as an incentive to convince the Tunisian authorities to adopt EU-friendly migration measures, in particular the readmission of irregular migrants who reached the EU from/through Tunisia. In 1998, for example, Italy and Tunisia signed a readmission agreement after Italy agreed to allocate an annual quota of 3000 work visas for Tunisian citizens (Natter 2015). In 2008, France reached a similar agreement with Tunisia, promising work permits for 9000 Tunisian citizens per year in return for cooperation on readmission and the prevention of irregular migration (ibid.). Over the following years, the tactic of linking readmission programs to visa facilitation programs became part of EU policy (EC 2016; Reslow 2015).
In addition to the financial assistance for economic and social development, Tunisia received from the EU funding for improving its “migration management” operations, in particular funding for strengthening control on its borders. First, EU member states provided Tunisia with the equipment needed to control its land and sea borders. In 2011, for example, Italy agreed to donate to Tunisia patrol boats and a hundred off-road vehicles for the fight against irregular migration to Italy (Tazzioli 2011). In late 2012 and early 2013, Italy handed over to Tunisia three patrol boats (Frontex 2013). Second, EU member states granted to Tunisia funding to build the infrastructure needed for enhancing migration control. In 1998, for example, Italy agreed to provide financial assistance for the creation of migration detention centers in Tunisia (Vassalo Paleologo 2009). And third, the EU provided funding for capacity building support in the area of border control (EC 2017a).
The kind of migration-related funding provided by the EU to Tunisia indicated that the EU’s central objective was to prevent irregular migration to the EU and not to improve mechanisms for protecting the rights of irregular migrants, including asylum seekers (Planes-Boissac et al. 2010). In part, the EU justified its position by claiming that irregular migration represented a potential security risk. This view was, to a large extent, based on the assumption that irregular migrants represented a potential terrorist threat (Frontex 2016; Frontex 2017). In addition, the EU justified its fight against irregular migration by claiming it was a humanitarian effort that aimed at saving people’s lives by dismantling the criminal groups involved in the smuggling and trafficking of irregular migrants (EC 2016). These two EU narratives on irregular migration were largely shared by both pre-revolutionary and post-revolutionary Tunisian governments. In the pre-revolutionary period, the Tunisian authorities portrayed irregular migrants as a security threat for the country and used it as a pretext to refuse to consider protection requests from asylum seekers (Planes-Boissac et al. 2012; Laacher 2007). In post-revolutionary Tunisia, the idea that irregular migrants represented a potential terrorist threat gained momentum after the escalation of war in Libya, with irregular migration seen as a way for terrorist groups to infiltrate Tunisia (Driss 2016). In both pre-revolutionary and post-revolutionary Tunisia, successive governments also adopted the view that the fight against irregular migration was a fight against criminal groups involved in people smuggling. After the Ben Ali regime enacted, in 2004, legislation criminalizing the smuggling of irregular migrants, the fight against human smuggling became part of Tunisia’s migration policy (Loi Organique 2004).
With the prevention of irregular migration promoted as a fight against terrorism and crime, it seemed almost inevitable that Tunisia embraced crimmigration law as a means to tackle irregular migration. Crimmigration law, the convergence of criminal law and migration law (Stumpf 2006), strengthens the perception of migrants as criminal offenders and, consequently, creates the impression that they represent a permanent security risk (García Hernández 2014), both of which can be useful for policy makers trying to portray irregular migration as a potential security threat.Footnote 2 In Tunisia, both pre-revolutionary and post-revolutionary governments used laws criminalizing irregular migration and migration-related activities as one of the key tools for enhancing migration controls. Such approach fell neatly into the EU anti-migration strategy that viewed the criminalization of irregular migration as one of the cornerstones of the fight against irregular migration both within and beyond EU borders (Mitsilegas 2013; Mitsilegas 2015; Crépeau 2013b).
The main objective of this article is to analyze how crimmigration law, combined with a range of illegal practices employed by the Tunisian authorities, negatively impact on the human rights of irregular migrants, in particular asylum seekers, in Tunisia. The central part of the article is divided in four sections, with each section examining the impact of Tunisia’s migration policy on a specific human right. The first section analyzes how legislation criminalizing irregular migration and migration-related activities, together with illegal practices used by Tunisian security forces (e.g., pushing back irregular migrants at Tunisian borders, detaining irregular migrants in order to prevent them from making asylum claims), deprive irregular migrants of their right to seek asylum. The second section examines how illegal practices adopted by Tunisian security forces (e.g., refusing to allow irregular migrants to have access to lawyers and interpreters) undermine the right to due process in both criminal proceedings and proceedings for protection status determinations. The third section argues that measures adopted by the Tunisian authorities (e.g., preventing refugees with protection status from obtaining residency permits) violate the refugees’ right to work, while the fourth section analyzes how the criminalization of irregular exit from Tunisia violates the right to leave a country, including one’s own.
By placing Tunisia’s migration policy and practices within the broader EU strategy of externalizing migration controls, the article will show how the EU supports, and relies on, Tunisia’s systemic violations of human rights in order to prevent irregular migrants from reaching the EU.