8.1 Introduction

In the last decade or so, the question of the legacies of colonialism in contemporary patterns of mobility governance has gained increasing attention in migration and refugee studies across a variety of fields.Footnote ¹ Building on these works, while complementing them, this chapter contributes to the book’s theme by identifying the ways in which colonial hierarchies are woven into contemporary EU migration and asylum law. It tackles this question by exploring in particular the 2015 and 2022 refugee ‘crises’, the latter in the context of the Russo-Ukrainian war and the former in the context of escalating conflicts in the Middle East and Africa.Footnote ²

Academic scholarship and media have been critical of the discrepancy between the two ‘crises’.Footnote ³ In 2022, the EU triggered for the first time the Temporary Protection Directive (TPD) to welcome the persons displaced by the Russo-Ukrainian war.Footnote ⁴ By contrast, in 2015, the EU’s response largely focused on upscaling a pre-existing regime, by further strengthening the security of its external borders, consolidating its cooperation with ‘third’ countries to curb migration flows, and supporting the creation and the operation of hotspot centres in frontline Member States. This chapter examines the ways in which this differential treatment has been facilitated by pre-existing colonial legacies in EU migration and asylum law, while carrying them forward.

Using mainly literature from history, political science, and postcolonial studies, it is argued that the colonial legacies in EU migration and asylum law are especially visible in arrangements that reproduce the colonial ‘sedentary bias’, under which the desirable or normal state of the colonized population was perceived as their remaining in their place of origin, and the related assumptions concerning ‘bogus’ (less ‘real’) refugees.Footnote ⁵ It is also shown that the differential scheme emerging from the two ‘crises’, which has been shaped by the racialized distinction between regular and irregular migration, carries forward these colonial legacies.

The chapter is divided in four sections. Section 8.2 outlines the theoretical framework. Building on existing works on migration and asylum, it contends that a postcolonial approach entails tracing and questioning the continuity of socially constructed ideas that sustained colonial patterns of unequal mobilities and treatment. Within such analyses, particular – though not exclusive – attention should be given to racialized ideas. It is also argued that the role of Europe as a common project, under which imperial states engaged in varieties of colonialism, is somewhat obscure in existing postcolonial works on migration and asylum. Section 8.3 elaborates on the common European colonial project(s) and outlines some of its main legacies in EU migration and asylum law.Footnote ⁶ It argues that colonial patterns of unequal mobility, as well as the racialized sedentary bias upon which they rested, have been to some extent reproduced in EU migration and asylum law, including its visa policies and the resulting distinction between regular and irregular migration. It also outlines how colonialism came to shape the post-war development of international refugee law, upon which contemporary EU asylum law largely builds, and its assumptions on potential ‘bogus’ refugees. Section 8.4 shows how the differential treatment of the 2015 and 2022 ‘crises’ has been facilitated by a racialized distinction between irregular and regular migration, in continuity with the colonial ‘sedentary bias’. It also argues that this operated in conjunction with assumptions that people from the Middle East and Africa are potential ‘bogus’ refugees. Finally, Section 8.5 offers some concluding remarks.

8.2 A Postcolonial Approach to EU Migration and Asylum Law

In the last decade or so, migration and refugee scholars across a variety of fields, such as political science, sociology, critical geography, and international law, have increasingly integrated postcolonial perspectives.Footnote ⁷ The ‘post’ does not indicate the end of colonialism, but rather its continuities after post-war processes of formal decolonization.Footnote ⁸ Scholars working from such perspectives are usually interested in the legacies of both formal and informal Western systems of domination over distant territories, in which socially constructed ideas and power relations have been entangled in complex ways.Footnote ⁹ In this sense, they pay particular attention to the ideas that justified colonial and imperialist practices, conceived as socially constructed even if posited as objective or universal. A recently published volume on Postcoloniality and Forced Migration, for example, emphasizes the importance of exploring the ways in which ideas about Western civilizational and cultural superiority, racialized hierarchies, religious differences, and gender, persist in contemporary times.Footnote ¹⁰

In this vein, Boeyink, Sahraoui, and Tyszler, show, for example, how racialized hierarchies inherited from colonial times shape violent border practices in the Spanish enclaves of Ceuta and Melilla on the North African coast and the French overseas department of Mayotte.Footnote ¹¹ Using a similar approach, Mainwaring and DeBono have argued that EU institutions and agencies, as well as EU Member States, have constructed a neocolonial image of the Mediterranean.Footnote ¹² Oscillating between the idea of a ‘European sea and a European responsibility’ (‘mare nostrum’) and the image of nobody’s sea (‘mare nullius’), that is, an empty and lawless space, these actors reproduced racialized colonial tropes while obscuring the historical connections with colonialism, empire, and trade.Footnote ¹³

Racialized inequalities, understood as race-based differential constructions with material effects, have been an important part of colonial schemes of governance and deserve special attention when examining the question of colonial legacies in EU migration and asylum law. Colonial identity markers other than race, such as gender, sexuality, and religion, were also part of these schemes, but they were often particular instances of ‘racialized formations’.Footnote ¹⁴ This chapter will examine in particular the racialized inequalities produced through the governance of the 2015 and the 2022 refugee ‘crises’. In line with postcolonial insights, race is understood here as a social construction of physical features and lineage (Black, White, Brown, or other designation), explicitly or implicitly (re-)produced in a variety of ways, including through legal, political, and economic arrangements.Footnote ¹⁵

While legal scholarship has been critical of EU migration and asylum law and its effects, postcolonial perspectives have been only scarcely developed so far.Footnote ¹⁶ Silga’s work, which examines in particular the migration–development nexus in EU policy discourse, stands out as one of the few to have built on postcolonial insights.Footnote ¹⁷ Indeed, she skilfully shows that migration was inserted in a conception of development tightly connected to the colonial ‘civilizing mission’, and that the resulting nexus dissuaded migration to Europe while reproducing a colonial ‘sedentary bias’.Footnote ¹⁸ In a similar vein, though less explicitly informed by postcolonial theories, Spijkerboer has argued that contemporary European case law, of both the European Court of Human Rights and the Court of Justice of the EU, shows troubling tendencies to carry forward unequal regimes that marginalize people from former European colonies.Footnote ¹⁹ The colonial ‘split form of legality’, of which the special regime of ‘overseas countries and territories’ is emblematic, would be reproduced in decisions that exclude the application of EU law to migrants or create lower standards for them.Footnote ²⁰ These insights provide a valuable addition to other scholars’ concerns over the troubling imprints of colonialism on the EU’s Schengen visa regime, as well as its policies of securitizing migration through partnerships with African countries.Footnote ²¹

The few international and EU legal works on migration and asylum that build on postcolonial theories often draw parallels between contemporary legal arrangements and the unequal regimes of specific European imperial states, such as France, the UK, and Belgium.Footnote ²² The role of Europe as a common project remains somewhat obscure in these works. Yet, as Bhambra has argued, European imperial states all engaged in ‘varieties of colonialism’ that ‘intersected over time to create what may be understood as a European colonial project’.Footnote ²³

8.3 EU Migration and Asylum Law and the European Colonial Project(s)

Efforts to establish a common direction, though not devoid of tensions and divergences, became especially visible at the 1884–1885 Berlin West Africa Conference, when European powers engaged in a negotiation process to formalize their claims to African territory.Footnote ²⁴ In this sense, colonial empires’ different forms of regulating the ‘natives’ and their rights were also part of common European efforts. Moreover, the varieties of colonialism had some important commonalities, one of which was the establishment and maintenance of a framework of unequal mobility that allowed Europeans to settle and consolidate imperial power, open up markets, and suppress resistance in the colonies.Footnote ²⁵

A more explicit framing of mobility between Africa and Europe as a common European concern, which continues to reverberate in today’s EU migration and asylum policies, became visible in the 1920s. Inter-European debates were then initiated on how to limit the number of Africans in Europe while acknowledging that they were still needed as soldiers.Footnote ²⁶ Such debates were partly shaped by German anxieties related to the presence of African soldiers in the occupied Ruhr area, seen as ‘uncivilized’ people posing dangers to the German population.Footnote ²⁷ At the same time, the then project of a Pan-European union advanced ideas that the African continent was an important provider of natural resources and a solution for Europe’s problem of overpopulation and unemployment.Footnote ²⁸

Situating contemporary EU migration and asylum law in these historical developments allows revisiting exceptionalist narratives on its exclusionary and violent effects, connecting them instead with the European colonial project(s) and patterns of continuity.Footnote ²⁹ The post-Second World War EEC framework, with four of the original six Member States then still colonial powers, revived the colonial project(s), with the idea that Africa would be an important provider of raw materials.Footnote ³⁰ In this sense, Europe’s self-understanding as a post-war cosmopolitan project, bringing together nation states into a transnational entity, conceals the revival of a colonial form of ‘transnationalism’ and its unequal governance schemes.Footnote ³¹

Within this ‘new’ framework, free movement of workers in the EEC was not extended to overseas territories, nor to extra-Community migrants.Footnote ³² Hansen has argued that such exclusion crystallized in the 1960s when the Council interpreted the provisions on workers’ freedom of movement as restricted to Member States’ nationals, shaped by the increasingly negative attitude towards extra-Community migration in a context of decolonization processes.Footnote ³³ Eklund has showed, however, that a version of such exclusion was already carefully constructed in 1957, through a distinction made in the Treaty of Rome between workers from EEC Member States, regulated by Article 48, and workers from associated ‘overseas countries and territories’, excluded from the regular regime by Article 135.Footnote ³⁴ This was part of a broader project of building an ‘ever closer union among the peoples of Europe’, which, understood in the context of colonial citizenship laws at the time, designated the ethnically and racially European population and excluded people from the territories then colonized by France, Belgium, the Netherlands, and Italy.Footnote ³⁵

After decolonization, the EEC/EC, and later the EU, carried forward this ‘split legality’,Footnote ³⁶ setting up progressively a framework to control and manage its external frontiers to ‘compensate’ for the creation of a Single Market and the project of EU citizenship. In this sense, while migration and asylum issues started to be explicitly developed in the EU agenda later, with an intergovernmental logic under the Maastricht Treaty and an increasingly supranational logic after the Amsterdam Treaty, the exclusion of persons from the colonies was already foreshadowed in the initial phases of the EEC.Footnote ³⁷

Fertikh has argued that France and Belgium have contributed in important ways to the crystallization of associated countries and territories’ exclusion from the freedom of movement of EEC workers.Footnote ³⁸ The two Member States were both interested in treating EEC nationals differently from the colonized population in relation to workers’ mobility and social security rights. Indeed, granting EEC workers access to their colonies was understood as both a threat to the stability of colonial rule and a risk of growing low-skilled White migration in the colonies.Footnote ³⁹ In this sense, such exclusion can be understood as the product of an interplay of relations in the EEC wherein the interests of certain Member States wielded significant influence over the outcome.

The contemporary EU legal regime produces an unequal mobility reminiscent of intra-imperial and EEC schemes, ‘a familiar combination of [Europeans’] hyper-mobility within [the EEC or the colonial empire], with significantly reduced South-North mobility’.Footnote ⁴⁰ This is especially visible in the Schengen visa regime, under which the countries whose nationals are subject to visa restrictions, and who become ‘irregular’ if not complying with this regime, are mainly in Asia and Africa.Footnote ⁴¹ The placement of an important part of these countries on the visa ‘black list’ dates back to the incipient intergovernmental stages of the Schengen project.Footnote ⁴² In this sense, irregularity was a racialized legal and political choice of the original five states that signed the Schengen agreement. These states, Belgium, Germany, France, Luxembourg, and the Netherlands, were also among the six founders of the EEC in 1957. Irregularity was actively produced by these states with the effect of making it harder for people from former colonies to reach the EU.Footnote ⁴³

Such regimes carried forward intra-imperial schemes of unequal mobility. These were often tightly connected with citizenship laws, which privileged the ethnically and racially European population by virtue of distinctions that denied full citizenship to ‘natives’.Footnote ⁴⁴ Within this framework, the mobility of people from the colonies to the metropole was restricted in ways that aimed at establishing or maintaining sedentary forms of life, with exceptions mainly framed in terms of forced or circumscribed mobility of labour power.Footnote ⁴⁵ At the same time, Europeans could travel to, trade, and settle in, colonial territories. These policies were based on a ‘sedentary bias’ that the desirable or the normal condition of people from the colonies was to remain in their place of origin.Footnote ⁴⁶ This bias came to be reproduced in EU law in a variety of ways, including through the Schengen visa system and the regime of external borders’ management and control. A version of it has also animated the construction of the EEC project. Historians have argued that indigenous immobilization was crucial for conceiving the metropolis as a ‘civilized’ nation state and for maintaining the colonial order.Footnote ⁴⁷

The sedentary bias was visible in different European imperial settings, be it the British Empire, the French colonial order, the Belgian Congo, and the Italian Ethiopia.Footnote ⁴⁸ In 1924, for example, the mobility of Algerians to the French metropole was subject to the requirement of providing a medical certificate and establishing proof of accommodation.Footnote ⁴⁹ This was followed by a more restrictive legislation in 1928, which required the possession of an identity card, a sum of money, and a ‘clean’ criminal record.Footnote ⁵⁰ Similar restrictions were adopted later in relation to French Western Africa. In Italian Ethiopia, people from the colonies had to obtain a travel document for each trajectory after having deposited a sum of money for potential repatriation costs.Footnote ⁵¹ In Belgian Congo, ‘natives’’ mobility within the colony was subject to close surveillance and strict regulation, a ‘transfer passport’ having been required for leaving one’s own constituency for more than thirty days.Footnote ⁵² In the British empire, while the official policy endorsed since 1914 the right of persons from its dominions to enter Britain, patterns of mobility were largely shaped by a racialized functioning of the labour market.Footnote ⁵³

Unequal regimes of intra-imperial mobility paradoxically coexisted with ideas of freedom of movement as a fundamental right in international law. This right became confined to narrower interpretations, especially after the Second World War, to affirm states’ prerogatives over their borders.Footnote ⁵⁴ The paradox of such coexistence is only apparent, however. As Mégret skilfully shows, these were rather two sides of the same coin. International law could endorse the idea of freedom of movement only because patterns of global mobility were shaped by the logics of empire.Footnote ⁵⁵ Indeed, since imperial regulation of mobility was conceived as ‘internal’, public international law could exclude an important part of humanity, consolidating the colonial sedentary bias, while framing its commitment to mobility in general terms.

Colonialism also came to shape the post-war development of international refugee law, upon which contemporary EU asylum law largely builds. Some of the main drafters and original signatories of the 1951 Refugee Convention were France, Italy, the Netherlands, Belgium, and the United Kingdom, still colonial powers at the time. The initial international refugee regime largely reflected their geopolitical priorities, also shaped by the Cold War anxieties of the time. This regime, which allowed states to limit the geographical scope of its application to events occurring in Europe, favoured anti-communist refugees from Europe.Footnote ⁵⁶ This meant that those displaced by decolonization movements at the time were largely ignored. Hathaway has argued that refugees from former colonies continued to be marginalized even after the 1967 Protocol removed the limitations of the 1951 Convention.Footnote ⁵⁷

An important way in which such marginalization was carried forward was through the very definition of the refugee, also incorporated in EU asylum law, which limited the grounds of persecution to violations of civil and political rights at the expense of socio-economic rights.Footnote ⁵⁸ More generally, limiting the flight to instances of persecution, at least as understood in Europe, came to exclude many persons from former colonies displaced by ‘natural disaster, war, or broadly-based political and economic turmoil’.Footnote ⁵⁹ Not only have such events been associated with colonialism, its history and implications, but their exclusion was in continuity with colonial ‘sedentarist’ practices and policies. Moreover, in the 1980s, international refugee policy started to favour ‘voluntary repatriation’ (instead of resettlement) as a solution for those fleeing the Global South,Footnote ⁶⁰ motivated in part by suspicions of ‘a thinly disguised movement of economic migrants’.Footnote ⁶¹ In other words, the impoverished situation in the Global South came to shape a bias of ‘bogus’ refugees, underpinning policies and practices of regional containment in continuity with the colonial sedentary bias.

EU asylum law reproduced the Refugee Convention’s limited understanding of refugees in the Qualification Directive.Footnote ⁶² It also added, however, two forms of international protection: the subsidiary protection status for persons who do not qualify as refugees, and the temporary protection status in case of ‘mass influx of displaced persons’. The subsidiary protection status, while covering ‘indiscriminate violence in situations of international or internal armed conflict’, required an identifiable actor of ‘serious harm’, thus carrying forward the previous exclusion of environmental and socio-economic factors. The TPD, a promising ‘crisis’ tool offering group-based protection without going through the standard individualized applications for international protection, has been activated so far only in the Russo-Ukrainian context. This prompts the question of whether and how the non-activation of the temporary protection regime in 2015 has carried forward colonial biases, a question that this chapter examines in more detail in the following section.

To be sure, the colonial legacies in EU migration and asylum law can also be explored in other ways. One such way would be to examine how the standard regime of the Common European Asylum System, and its operation in conjunction with racialized EU visa policies, reproduces biases of ‘bogus’ asylum seekers with ‘sedentarist’ racialized effects. The virtual lack of legal paths for people from the Global South to reach the EU for applying for international protection, coupled with the operation of EU-law-based regimes to accelerate these people’s asylum procedures, declare their applications inadmissible, or reject, detain and return them, are all promising avenues of enquiry. The discrepancy between the 2015 and 2022 ‘crises’, however, offers an entry point for discussing many of these issues, while presenting a focused case study for more in-depth analysis.

8.4 Two Refugee ‘Crises’, One Racialized Differential Scheme

The discrepancy between the 2015 and the 2022 ‘refugee crises’, the first in the context of conflicts in the Middle East and Africa, especially Syria, and the second in the context of the Russo-Ukrainian war, has been criticized for having produced a racialized differential scheme of treatment. Critical academic and media voices, while welcoming the favourable treatment of those fleeing the Russo-Ukrainian war, have decried Europe’s ‘double standard’ when it comes to White Christian individuals and non-White ‘Others’.Footnote ⁶³ The following analysis explores how such inequality has been constructed through EU policy and legal arrangements, especially its racialized distinction between irregular and regular migration.

The two ‘crises’ were both understood by the European Commission as concerning a ‘mass influx’ or ‘large numbers’ of displaced persons, yet the legal instrument specifically designed for such situations, the TPD, was triggered only for those fleeing the Russo-Ukrainian war. This meant that a scheme of temporary protection was activated for the group of persons displaced by the Russo-Ukrainian war, without going through the standard procedures of individual examination under the Common European Asylum System. By contrast, under the 2015 ‘crisis’ scheme of governance, security concerns and processes of selection of ‘true’ refugees were privileged, leading to the creation of more dangerous routes, returns, detention, and deaths in the Mediterranean.

While contemporary geopolitical concerns related to the Russo-Ukrainian war have played an important part in the activation of the TPD, it would be reductive to dismiss the legacies of colonialism that have simultaneously subtly operated in the governance of the two ‘crises’. The 2015 ‘crisis’ approach of the EU, as it will be shown, was shaped by the perceived threat of irregular migration, a racialized category mainly produced by the EU Schengen visa regime and largely concerning people from former European colonies. The top seven countries of origin of asylum seekers who managed to reach the EU in 2015 and 2016, according to the reports of the then European Asylum Support Office, were Syria, Afghanistan, Iraq, Pakistan, Eritrea, Nigeria, and Iran.Footnote ⁶⁴ Each of them was shaped by tensions at that time, whether through civil war, violence, or escalating conflicts. These countries had all been under the rule of a European State (France, the UK, Italy) in different forms, including as a ‘mandate’, ‘protectorate’, a formal colony, or subject to informal rule. In this sense, their inclusion in the Schengen visa ‘black list’, together with other former European colonies, carries forward colonial schemes of unequal mobility, albeit in an altered manifestation.

The 2015 European Agenda on Migration, which laid the foundations for the governance of the 2015 ‘crisis’, explicitly refers to the need to ensure ‘a robust fight against irregular migration, traffickers and smugglers and securing Europe’s external borders’.Footnote ⁶⁵ To be sure, the idea of offering international protection to those in need is also present, but it is the threat of irregular arrivals that marks a stark difference with the approach under the TPD, making it the main discursive facilitator of the unequal treatment. In this sense, the differential scheme of treatment of the two ‘crises’ is tightly connected to a pre-existing distinction between regular and irregular migration, a racialized divide that carries forward the colonial sedentary bias and exclusions under the EEC.

Indeed, this distinction can be understood as a ramification of the colonial dualization upon which the EEC was built in continuity with colonial ‘sedentarist’ policies. Although the regular/irregular differentiation is made within the category of non-EU citizens, its racialization via the EU Schengen visa regime confirms the European project of building an ‘ever closer union’ among the ethnically and racially European population.Footnote ⁶⁶ In other words, if the EEC project is understood in ethnic and racial terms with the effect of excluding people from the colonies, the continuing exclusion of these people (and others) after formal decolonization reproduces a racialized scheme of unequal mobilities. It is a ramification of the original EEC project, itself a continuation of previous European colonial projects: EU law carries forward a hyper-mobility regime for EU citizens, and a regime of ‘non-entrée’ for people from the Global South. Somewhere in between these two poles, a regime of visa-exempted mobility, albeit with less benefits than EU citizens, is offered to a predominantly White population from ‘third’ States. Some of these neighbouring States, like Ukraine, have been granted ‘EU candidate status’ with the prospect of expanding the ‘ever closer union among the peoples of Europe’.

Prior to Ukraine acquiring the EU candidate status in 2022, a regime of visa-free travel for short stays was granted to Ukrainian nationals in 2017.Footnote ⁶⁷ In this sense, regularity was created for them.Footnote ⁶⁸ While the TPD does not distinguish between regular and irregular arrivals, the 2022 Council Implementing Decision did emphasize that Ukrainian nationals were exempt from visa restrictions when Russia invaded Ukraine in 2022.Footnote ⁶⁹ The decision, however, obscures that this was the product of a legal and political choice to facilitate Ukrainians’ access to the EU in the first place. This choice was made by the EU after Poland had issued work and residence permits as a response to the 2014 annexation of Crimea by Russia.Footnote ⁷⁰ This can be partly seen as the product of EU–Poland relations and the EU’s own geopolitical agenda, but it would be incomplete to halt at this point. If the racialized category of ‘irregularity’, which carries forward the colonial sedentary bias, facilitated a radically different response in 2015, the overall differential scheme cannot be meaningfully separated from its colonial roots.

Moreover, conflating the 2015 ‘crisis’ with the threat of irregular migration, produces the racialized figure of the potential ‘bogus’ asylum seeker, in continuity with the ways in which colonialism and Cold War anxieties have shaped international refugee law. In this sense, the differential scheme created by the governance of the 2015 and 2022 ‘crises’ rests on the assumption that White individuals are more ‘genuine’ refugees than non-White Others. Although the term ‘refugee’ is not used in the 2022 Council Implementing Decision, the refugee status being distinguished from the temporary protection status under the Common European Asylum System, the overall response of the EU in 2022 has focused ostensibly on the need to offer protection. The emphasis on protection in a situation of ‘mass influx’ comparable to 2015 does convey the idea that this group of displaced persons is perceived as more worthy and credible than the other.

Skordas has argued that the two ‘crises’ have been justifiably treated in different ways, precisely because the 2015 context concerned ‘irregular mass migration’, while the 2022 context concerned ‘mass influx of displaced persons’.Footnote ⁷¹ Nationals from Middle Eastern and African countries, or so the argument goes, could have benefitted from protection elsewhere if indeed needed, and this allegedly casts doubt over their qualification as ‘displaced persons’ within the meaning of the TPD. The argument conceals the constructed character of irregularity, as well as its racialized dimension and colonial legacies, with the effect of portraying people mostly from former colonies as less ‘real’ refugees. At the same time, such ideas reproduce the colonial tropes of immobilizing the ‘natives’, including within regional confines, and undermine their rights through an unequal scheme of governance.

To be sure, the 2015 Agenda on Migration did refer explicitly to international protection needs, but they were considered in conjunction with the dangers associated with the threat of irregular migration. This led to an approach that privileged processes of selection between ‘real’ and ‘bogus’ refugees, notably through hotspots created in Italy and Greece. The distinction between regular and irregular migrants was presented in a way that concealed the role of the EU in producing it through a racialized Schengen visa regime. It also masked the fact that very few legal paths exist for those who flee conflicts in the Global South. Indeed, in addition to the shortcomings of the 2015 European Resettlement scheme, mainly because of its voluntary nature,Footnote ⁷² EU law does not require Member States to grant a humanitarian visa for those seeking to reach the EU to apply for asylum.Footnote ⁷³ In this sense, the 2015 approach, under which the figure of the asylum seeker from the Global South is overshadowed by that of the irregular migrant, carried forward a pre-existing racialized ‘non-entrée’ regime.

The emphasis on the threat of irregular migration, to be read as a risk of arrival of persons mainly from former colonies, went further than that: it laid the ground for more restrictive policies and practices, some of them with a global reach. Indeed, it laid the foundation for increasing detentions and returns, Frontex-led joint operations, Common Security and Defence Policy (CSDP) missions, and further (formal or informal) agreements with countries from the Global South to control migration to the EU.Footnote ⁷⁴ Two important technologies were used with the effect of exacerbating the pre-existing unequal regime of mobility: an increased association of people from the Global South with security concerns, and the ‘externalization’ of this racialized migration–security nexus, oftentimes in conjunction with development policies in the Global South.

These technologies shaped the Commission’s recommendations in 2015 to strengthen Frontex’s role and capacity to secure the EU’s external borders, organize returns, to incorporate migration in the then ongoing CSDP missions in Mali and Niger, as well as to deploy CSDP more generally to ‘systematically identify, capture and destroy vessels used by smugglers’.Footnote ⁷⁵ Saving lives at sea was also considered as part of a reinforced mandate of Frontex, but rather in an incidental manner that prioritized border security operations.Footnote ⁷⁶ Within the security rationale, Global South migrants came to be portrayed as victims to be saved from exploiting smuggling networks, a rhetoric that concealed the role of restrictive EU policies in creating the racialized need to resort to irregular means in the first place.Footnote ⁷⁷ At the same time, the ‘fight against criminal networks of smugglers and traffickers’ has been understood as a means of dissuading irregular migration, and thus of ‘immobilizing’ migrants from Global South countries, reinforcing the colonial ‘sedentary bias’ and carrying forward the image of potential ‘bogus’ asylum seekers.

Similar ideas appear in relation to partnerships with ‘third countries’, understood as required for addressing the ‘root causes’ of irregular migration to the EU. Security considerations have occupied a predominant place in such agreements with ‘third countries’, whose pre-existing role as Europe’s ‘border guards’ has been further consolidated in the context of the 2015 ‘crisis’. It is in this sense that the 2015 Agenda emphasizes that:

While arrangements with ‘third countries’ can be traced back to the 1990s, their development intensified in 2015 and 2016 with the infamous EU–Turkey Statement and the Valletta Summit on Migration centred on cooperation with African states.Footnote ⁷⁹ The resulting ‘externalization’ of EU securitized borders to countries like Libya, Turkey, Sudan, Niger, Mauritania, and Mali, has been subject to severe criticism.Footnote ⁸⁰ From providing border equipment and training to border guards to consolidating and establishing surveillance systems and funding detention centres, the measures established by these arrangements produced more dangerous routes for those from African and Middle Eastern countries while creating more possibilities of returning them, either to their countries of origin or countries of transit. Many of these agreements also provided for development aid in exchange for third countries’ cooperation with the EU in securing ‘their’ borders. Development, however, often sought to curb migration flows, in continuity with the colonial sedentary bias.Footnote ⁸¹

The effects of the 2015 approach have been dramatic, with almost 10,000 deaths in the Mediterranean registered in two years, according to the International Organization for Migration.Footnote ⁸² Similar effects had been already experienced under intra-imperial schemes of regulating mobility during the twentieth century. An example in this vein is the series of attempts to reach the French metropole by means of unsafe boats after movements from Algerian departments were restricted.Footnote ⁸³ In 1926, the ‘Sidi Ferruch’ incident revealed the suffocation of more than twenty ‘natives’ hidden in enclosed spaces of a boat to avoid police checks.Footnote ⁸⁴ This led to even more restrictive policies in 1928 requiring conditions such as the possession of an identity card, a sum of money, and a ‘clean’ criminal record. While today restrictions are based on a different set of measures, the Sidi Ferruch example is reminiscent of the self-perpetuating ‘sedentarist’ cycle of irregularity: restrictions produce more unsafe routes and defying them leads to more restrictions and more dangerous routes.

In contrast to the 2015 approach, the activation of the TPD in the context of the Russo-Ukrainian war led to a more welcoming regime, under which most of those fleeing the war were entitled to enter the EU and to obtain residence permits in the host Member States for the entire period of the temporary protection.Footnote ⁸⁵ The unequal treatment of the 2015 and 2022 ‘crises’ has had implications not only for mobility towards the EU, but also within the EU. In the 2015 context, if people from Middle Eastern and African countries managed to reach the EU and apply for asylum, they became transferable and detainable if they travelled to a Member State not seen as responsible for their asylum application under the Dublin III rules.Footnote ⁸⁶ In this sense, their potential country of refuge had to be decided according to the Dublin III Regulation. By contrast, under the Schengen visa-free regime, Ukrainian nationals could move freely within the Schengen Area as they fled the Russo-Ukrainian war.

The EU’s approach to the 2015 ‘crisis’ continues to shape contemporary regimes and practices that concern people from the Global South. Initially conceived as an emergency scheme and a ‘blueprint for the EU’s reaction to future crises’,Footnote ⁸⁷ many of its aspects, such as partnerships with African countries and hotspots in Italy and Greece, remain in place to this day. Moreover, many of them have been integrated in the standard regime of the reform proposals under the 2020 New Pact on Migration and Asylum.Footnote ⁸⁸ In this sense, the 2015 ‘crisis’ approach seems to have become the ‘blueprint’ for the EU’s general approach to migrants from the Global South, applicable even in ‘non-crisis’ times, marking a more restrictive turn in continuity with colonial ‘sedentarist’ policies.

To be sure, media and civil society actors reported racialized practices even in the context of the Russo-Ukrainian war. Indeed, they emphasized that people from Africa were hindered from fleeing by Ukrainian authorities, while Romas faced discriminatory practices in relation to rights associated with temporary protection such as housing.Footnote ⁸⁹ These practices are in tension with the Council Implementing Decision 2022, which recognizes the need to protect permanent residents in Ukraine and allows short-term residents to enter the EU for preparing their returns to their countries of origin.Footnote ⁹⁰ However, these practices also confirm that at least some authorities perceived the reception of persons fleeing the Russo-Ukrainian war as mainly confined to Ukrainian citizens or White ‘quasi-Europeans’.

To complicate further the overall scheme of unequal treatment of the two ‘crises’, its racialization is largely made invisible under the EU’s Race Equality Directive.Footnote ⁹¹ Indeed, racial discrimination under EU law does not cover ‘difference based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals’.Footnote ⁹² In other words, EU anti-discrimination law carries forward and obfuscates the racialization of the distinction between regular and irregular migrants, upon which the unequal scheme of managing the two ‘crises’ rests. The postcolonial analysis provided here sought to go beyond this legal understanding of racial discrimination, by looking at race as a social construction that can be reproduced in implicit or (more rarely) explicit ways. Race has also been approached as tightly connected to colonial ‘sedentarist’ policies, which continued to cast a shadow over the EEC project, international refugee law, and EU migration and asylum law.

8.5 Conclusion

The postcolonial lens used in this chapter has provided a framework to explore some of the main colonial legacies in EU migration and asylum law, including how these have shaped the differential treatment of the 2015 and 2022 refugee ‘crises’. The chapter has argued that the colonial racialized sedentary bias, a version of which was already inscribed in the EEC project, is woven into EU migration and asylum law. It has also emphasized the ways in which international refugee law, upon which contemporary EU asylum law largely rests, was shaped by colonialism, in addition to Cold War anxieties. The definition of the refugee, identical under the Refugee Convention and the Qualification Directive, excluded many displaced persons from the Global South even after the 1967 Protocol removed the limitations of the Convention. These people also came to be increasingly associated with potential ‘bogus’ refugees, in continuity with the colonial racialized sedentary bias.

The differential governance of the 2015 and 2022 refugee ‘crises’ has carried forward these ideas through measures that built on a racialized distinction between regular and irregular migration. This distinction is largely produced by EU Schengen visa policies: the category of the ‘irregular migrant’ emerges from visa restrictions, which concern mainly people from former colonies. It is the threat of these people’s arrival in the EU, constructed as ‘irregular’, that has shaped the 2015 approach, under which the TPD was put aside in favour of a set of measures that upscaled a pre-existing securitized and racialized regime. This meant creating more obstacles for people from the Global South to reach the EU, including by further strengthening the security of external borders, creating hotspots in frontline Member States to identify the ‘real’ refugees, and consolidating the cooperation with ‘third’ countries to curb migration flows.

This analysis allows revisiting exceptionalist narratives on the two ‘crises’, situating them instead within patterns of continuity of the European colonial project(s). This is not to say that there were no emergency measures in the governance of each ‘crisis’, but rather that the discrepancy between these measures carries forward a more stable and structural colonial pattern of racialized unequal mobility. This is further confirmed by the enduring 2015 approach, currently on its way to becoming – at least partly – an integral component of the standard regime under the 2020 New Pact on Migration and Asylum.

To be sure, the chapter does not suggest that the enduring legacies of colonialism in EU migration and asylum law necessarily determine a single outcome, that of a continuous exclusion of people from former colonies. After all, nothing in the TPD confines its activation to ‘regular’ (as opposed to irregular) arrivals. Neither is it suggested that colonial legacies are mere manifestations of neocolonial policies that instrumentalize existing legal arrangements for such purposes. EU migration and asylum law is rather situated somewhere in between these two poles: with a structure that carries forward colonial legacies but with some degree of flexibility as to the ways in which such structure can be used. The aim of the chapter, therefore, was not to show that EU migration and asylum law must be altogether dismissed. The aim was rather to expose the colonial legacies of EU migration and asylum law for greater awareness of how such legacies might be carried forward, while inviting further research on possible ‘decolonizing’ counter-mobilizations.