- Published on Friday, 27 November 2015 11:18
- Category: Articles and Commentary
- Written by Przemysław Roguski
Europe is back in crisis mode. After the Eurozone debt crisis, the standoff with Russia over Ukraine and the third Greek bailout, Europe faces yet another challenge: hundreds of thousands of people streaming into the European Union in search of refuge, jobs and a better life. In what has now become a familiar pattern, we see calls to action, extraordinary summits and recriminations between member states, followed by more calls for unity etc. We also see the media hunting for the most powerful image to depict the crisis and finding it, depending on their views, in the tragic death of Aylan Kurdi, a Kurdish boy from Syria who drowned in the Aegean Sea on his way to Greece, or in the pictures of ungrateful refugees throwing away food distributed by the Hungarian authorities.
All this leads to a vivid and often morally exalted debate, where arguments about law and policy are supplanted by statements about morality and values. It is striking how fast a difference of opinions on how to tackle the refugee problem has brought up old East-West stereotypes. On the one hand, enlightened and progressive Western Europe, caring for European values and human rights, the “Europe of light”, whilst on the other, xenophobic, backwards and occasionally anti-Semitic Eastern “dark Europe” (Dunkeleuropa). Alternatively, as seen from an eastern perspective: the realist East, enforcing European law and preserving its sovereignty and Christian heritage against a Muslim invasion versus the left-wing, politically correct West, blind to growing Islamic radicalism and social tensions between immigrants and locals in their own countries, all the while trying to impose its values on others by force.
Three major challenges
What is largely missing from this debate, both in the media and, unfortunately, sometimes also in politics, is a thorough and unbiased analysis of the roots of the crisis and the best instruments to fight it. Neither Angela Merkel’s “we can do it” nor Viktor Orbán’s “refugees are a German problem” are prime examples of a well thought-out policy. Nor is calling every migrant arriving in Europe a refugee or an Islamist radical a substitute for informed journalism. Instead, to fully understand the current situation, it is important to look at three key issues. Firstly, the scope of the present challenge, i.e. who is coming and why. Secondly, the legal background, including what our rights and obligations are. Finally, developing a strategy and deciding how to proceed.
Today, the EU faces three major challenges emanating from what former NATO Secretary General Anders Fogh Rasmussen called an arc of instability: Ukraine, the Middle East and North Africa and the Sahel. The Russian annexation of Crimea and the conflict in Donbas have brought war back to Europe. Ukraine faces threats to its territorial integrity and has to cope with up to 1.5 million Internally Displaced Persons (IDPs) fleeing conflict or political oppression. Many Ukrainians decided to migrate to Europe, the United States or Canada. However, thus far, the majority have done so through tourist, educational or working visa arrangements, rather than through a formal asylum procedure.
In the Middle East, the war in Syria and the rise of the so-called Islamic State in Iraq and Syria (ISIS) has resulted in large scale death and destruction, as well as enormous hardships for the population. According to estimates by the United Nations High Commissioner for Refugees (UNHCR) 10.8 million Syrians, out of a pre-war populace of around 22 million, were affected by the conflict. Six and a half million people are internally displaced, while over four million have fled the country. Most have fled to neighbouring countries, with Turkey (1.9 million), Lebanon (over one million) and Jordan (630,000) being their main destinations. However, more and more Syrians, both from Syria directly and from their places of refuge in Turkey, Lebanon and Jordan, have decided to seek asylum in Europe. Finally, in the Sahel region of Africa, oppressive regimes such as Eritrea, the Islamic radicals of Boko Haram in Nigeria and Al-Shabab in Somalia, as well as general economic hardship, have forced people to flee.
All these crises have led to massive population movements which are reflected in European migration statistics. Data provided by Eurostat, the EU statistics agency, show a steadily rising number of asylum applications within the European Union. In 2013 there were 432,055 applications throughout all 28 EU member states. This number has risen to 627,780 in 2014 and 422,860 in the first half of 2015. Germany alone is predicting it will take up to 800,000 asylum seekers by the end of 2015. Those seeking asylum in the EU come from all around the world, with Syrians, predictably, comprising the largest group. Applications from other war-torn or unstable countries such as Afghanistan, Eritrea, Pakistan, Iraq and Somalia are also quite high. However, the statistics also reveal quite a few surprises. For example, the third-largest group of asylum seekers in 2014 and the first two quarters of 2015 came from Kosovo, a country which is relatively safe, albeit poor and corrupt. Serbia and Albania are also high on the list, as is – surprisingly – Russia, with 19,820 applications in 2014 and 8,555 in the first two quarters of 2015, down from a record high of 41,470 in 2013. Ukrainian citizens have filed 14,060 applications in 2014, 14 times more than in 2013, but still a small number when compared to the 1.5 million Ukrainians who are internally displaced.
What these statistics reveal is that while the migration numbers are high and constantly rising, the current influx should not have come as a total surprise. Indeed, Spain, Italy and Greece have been asking for EU support in coping with the mass influx of migrants for many years, but to no avail. Instead of offering help, most other EU states, Germany prominent among them, insisted on adherence to the so-called Dublin III Regulation, which stipulates that asylum claims must be made in and processed by the first country of arrival.
What the numbers also show is that not every person applying for asylum in the EU is coming from a war-torn country. Indeed, people from Kosovo, Ukraine, Afghanistan or Syria may be united in their wish to be granted the right to stay in the EU, but differ in the reasons and circumstances for their flight. These differences matter greatly for the legal qualification of the asylum claims made by migrants. This qualification in turn is decisive for whether a person will be granted protection within the territory of a state of which s/he is not a citizen. In order to decide who has and who does not have the right to international protection, we need to turn to international refugee and asylum law.
Who is a refugee?
Let us start with a rather obvious but nonetheless important observation: each state has the power to grant or deny a person who is not a citizen access to its territory. The fixing of borders and the exclusive control over admission to territory are core aspects of a state’s sovereignty. Of course, in today’s world, it is standard practice that foreign nationals may enter other states, but this must be done at designated border crossings, air or sea ports and with proper documentation to enable the state to identify the person who wishes to enter, i.e. a passport and in some cases a valid visa. Without these documents, a state may refuse admission and may even penalise illegal border crossings.
However, as with every rule, there are exceptions. After the terrible tragedy of two world wars and the wide scale persecution of specific groups such as the Jews, the international community agreed that people fleeing persecution within their own country need and deserve protection elsewhere. Prior to the Second World War, the League of Nations created the office of the High Commissioner, initially for Russian refugees and then later for Armenian, Assyrian and Turkish ones. In the aftermath of the Second World War, which had devastated a whole continent and displaced millions of people, the International Refugee Organization (IRO) was set up with the task of catering to the needs of war refugees. The IRO was later replaced by the United Nations High Commissioner for Refugees (UNHCR) and a permanent legal framework to determine the status of refugees. In addition, state obligations towards refugees were established in the 1951 Convention Relating to the Status of Refugees and its latter 1967 Protocol.
According to this Convention, a person is a refugee if s/he fulfils four distinct criteria. Firstly, s/he must be fleeing due to a well-founded fear of persecution. Persecution in legal terms arises when there is a possible or actual violation of substantial rights of the person, such as most obviously the right to life or personal liberty, but may also affect other basic rights. To be recognised as a refugee, a person does not have to have already suffered persecution, but the fear which leads to his need of protection must be founded on real grounds. If a person is fleeing out of fear of harm emanating from other sources, such as climate change, natural disasters, drought, pollution and so forth, the element of persecution is not present and that person is not a refugee.
Secondly, the persecution a person is fleeing from must be based on one of five grounds: race, religion, nationality, membership of a particular social group or political opinion. So, for instance, people fleeing from religious oppression by ISIS, like the Yazidis or Christians, or from sexual violence or racial hatred, fulfil this definition, whereas people fearing indiscriminate violence from militias or organised crime are not covered by the definition, unless other circumstances are present.
Thirdly, to have the status of a refugee, a person must be outside of the country of his/her nationality, which means that s/he must have crossed the borders of his/her home state. This is an important qualification, as it excludes those people who were forced to flee their homes because of persecution but who remain within the borders of their state. This subsidiary aspect of refugee protection is also evident in the final condition, which is that to be considered a refugee, a person must be unable or, owing to fear of persecution, unwilling to avail himself/herself of the protection of his/her home country. Only when the home country is unwilling or unable to grant protection to a person should other countries step in and offer international protection by recognising such a person as a refugee.
This very brief introduction to the 1951 Convention definition of a refugee – a definition which is accepted throughout the world, even if some aspects of it are interpreted differently – illustrates that not every migrant claiming asylum within the EU qualifies as a refugee. People coming from relatively safe countries such as Serbia, Kosovo or Albania will have a very hard time proving that they are persecuted by their governments. Indeed, the EU has designated those states as “safe countries of origin”, which greatly reduces the chances of their citizens successfully claiming refugee status. Equally, Ukrainians only have a marginal chance of recognition as refugees, even though they might be fleeing genuine persecution on national or political grounds in Crimea or the Donbas region. Since most of the territory of Ukraine is still under governmental control and normal life goes on in places such as Kyiv, Lviv or Dnepropetrovsk, people fleeing Crimea or Donbas can still avail themselves of the protection of their home state in other parts of the country. This is legally called an “internal flight or relocation alternative” and usually serves as a bar to obtaining refugee status. On the other hand, people fleeing sectarian violence in Syria, Iraq or Afghanistan, or oppressive regimes such as Eritrea, have better chances of having their refugee status recognised.
It is notable that a strict application of the refugee criteria would leave some people fleeing real threats without the possibility of protection. If a person is fleeing civil war in Syria, but not because s/he is actively persecuted by one of the warring parties, then technically, one of the five grounds of persecution may not be present. Regardless, clearly such a person would be in desperate need of protection.
In cases where the life or rights of a person would be in jeopardy if s/he would return, international law forbids the expulsion of that person. In Europe, this socalled obligation of non-refoulement arises from the European Convention of Human Rights and was later codified in the EU Qualification Directive (2011/95/EU). According to this directive, a person seeking asylum within the EU may qualify either for refugee status or so-called subsidiary protection, which is granted when a person faces serious harm, such as the death penalty, torture, inhumane or degrading treatment, punishment or a serious threat to life or health by reason of indiscriminate violence in situations of armed conflict. Accordingly, most people fleeing the war in Syria would be eligible either for refugee status or at least subsidiary protection. In practical terms, there is no difference between the two and a person granted international protection on either grounds will be protected and given residence permits, travel documents and access to education and employment.
Turning to the application of these rules in the current migration crisis, it is important to examine the obligations of member states towards third-country nationals who attempt to cross their borders to claim asylum. Firstly, each EU member state is obliged to accept and process every application for international protection made within its territory at its borders or international transit zones. No person who has asked for asylum may be turned away or expelled without an examination of their claim. However, the Schengen rules, which govern the territory of the open borders of EU member states that are members of the Schengen agreement, require each state to control admittance into the territory and to admit only those persons who have a valid travel document and visa. With regard to migrants and refugees arriving at external EU and Schengen borders, this means that they can be admitted if they apply for asylum. There is no right of entry without a visa or without filing in an asylum claim and persons who do not do so may be denied entry.* Accordingly, states are not prohibited from discouraging illegal border crossings by making this an administrative or criminal offence, as is currently the case in Germany and, most recently, Hungary.
The Dublin III Regulation stipulates that a single EU member state shall be responsible for examining the application for international protection filed by an asylum seeker. Generally, the responsibility falls on the country of initial entry into the EU. Countries not responsible for processing an asylum application may nevertheless do so voluntarily and in certain cases may be prohibited from returning an asylum seeker to the responsible country if the asylum procedure in that country is manifestly inadequate. Until very recently, member states have been very reluctant to process asylum applications if they are not obliged to do so under the Dublin III Regulation.
The country responsible for processing the claim is obliged to register the application, enter the applicant’s data, including fingerprints, into a common EU asylum database and decide whether to grant or withhold international protection to the individual. While an asylum application is being processed, the state must ensure sufficient accommodation, food and health care is provided to the applicant. Each application must be considered individually and must conform to due process of law. The European Court of Human Rights is very strict in this regard and has declared in a recent case concerning the return of migrants who arrived by boat in Lampedusa that return orders issued after 48 hours to each applicant individually, but whose text was otherwise virtually identical, amounted to a prohibited mass expulsion (this judgment is hotly contested by Italy).
Under the Dublin III Regulation, the countries of first entry are responsible for processing asylum claims. According to the UNHCR, 520,927 migrants have arrived in Europe by sea in 2015, with 387,520 arrivals in Greece and 131,000 in Italy. It is obvious that such a high number of arrivals would pose a tough challenge for any country and that the Dublin Regulation is putting a disproportionate burden on certain countries, especially in situations such as a mass influx of migrants. The Dublin system proves even more inefficient if we consider that the first country of entry is often Greece. However, Greece has failed to implement its duties under the Dublin system and does not register or process asylum applications. Instead, it sends the migrants onwards to other countries. Faced with Greece’s obvious incapability of dealing with the migration influx on its own, a good European policy response would have been to help Greece financially and administratively to process the migrants and their asylum applications in a fast and appropriate manner when it first asked for help in 2012, rather than to simply insist that Dublin III must be adhered to.
The collapse of the Dublin system in Greece, which had already happened before the current crisis erupted in August 2015, led to an increased influx of migrants, particularly to two countries: Germany and Sweden. Although police and local administration had already issued warnings in 2014 that Germany was facing rising numbers of migrants and that the asylum procedures were inadequate, the government failed to react. The full realisation that Germany has to brace itself for a mass influx came only in the summer of 2015. Moved by genuine sympathy towards the plight of the migrants, especially after the scene of Aylan Kurdi’s death on the front pages across Europe and the swift condemnation of right-wing and neo-Nazi attacks on asylum centres in eastern Germany, the German people reacted with a massive outpour of compassion and volunteerism to help the arriving migrants. In this way, the German “welcoming culture” (Wilkommenskultur) was born. Meanwhile, Angela Merkel was visiting facilities for asylum seekers, posing for selfies and calling for a German “we can do it” attitude. The political consequence of this attitude was a decision to temporarily resign from enforcing the Dublin III Regulation.
While this decision was legally correct and may have been intended as a simple acceptance of facts on the ground (i.e. most migrants wanted to go to Germany), the political signal it sent out was interpreted as an open invitation for all Syrian refugees to come to Germany. After a couple of weeks, the German government realised that it had made a mistake and began backtracking, temporarily introducing border controls. European tensions were exacerbated by the unilateralism of both German decisions. For a while, it started to look like “every man for himself”, culminating in beggar-thy-neighbour policies being introduced in the Balkans.
A way forward
In this situation, the need for unified European action and solidarity is obvious. The first steps were taken in September during the Council and European Council meetings, but the decisions reached there can only be the start. Further bad blood between the East and West, such as during the decision to relocate 160,000 migrants, needs to be avoided. So what might be a way forward?
A good starting point may be to fully utilise and apply existing legislation. Each person arriving at an EU border has an unconditional right to be treated with dignity, to be provided shelter and to have his/her asylum application processed individually and with all the proper legal safeguards. In return, s/he has to co-operate with the authorities and must subject him/herself to registration and fingerprinting. The impression that migrants may freely choose whether to co-operate with the authorities, travel throughout the European Union without hindrance and freely choose their country of asylum must be countered and the violation of these rules actively discouraged.
Next, Europe must get serious about managing the influx of migrants into Greece and organising their onwards journey. If the Dublin system is to be re-established, Greece should be helped in caring for and registering the arriving migrants, by ways of financial and technical assistance. Quick procedures should be established for those migrants who come from safe places and whose asylum applications stand little chance of being accepted. Furthermore, Europe needs to increase its involvement in the Middle East in order to facilitate an end to the conflict in Syria. It must also help the migrants in Syria’s neighbouring countries. Since the outbreak of the Syrian war, the EU and its individual member states have sat on the side lines and pretended that the war does not concern them. This approach must change.
In 2015 the EU and individual member states contributed around 150 million US dollars to the UNHCR Syria Relief Fund, which provides help to Syrian refugees in Turkey, Lebanon, Jordan and other adjoining countries. Despite this, the programme is still greatly underfunded, with a funding gap of $750 million for 2015 alone. The UNHCR had to reduce rations in the camps, which has greatly contributed to the decision of many to flee to Europe. Unfortunately, some EU countries, such as Belgium or Poland, have not contributed at all. A generous contribution to the Syria Relief Fund may still be the better investment, since it is cheaper to provide help to the refugees in Turkey and Lebanon than to those already in Germany or Sweden.
Finally, politicians should understand that asylum procedures should not be treated as a substitute for a coherent migration policy. These procedures were designed to offer protection to those fleeing persecution and not to help countries overcome the problem of low birth rates. Applying the refugee law too liberally risks the erosion of popular support for the institution of asylum and, thus, does a great disservice to those people who are genuinely persecuted and need help from the international community. Instead, EU member states should explore ways to offer migrants legal avenues to find a job and relocate to the EU. This would release some pressure from the asylum system and enable states to steer immigration according to their demographic and economic needs.
The measures advocated above will not bring about an end to the crisis overnight, but might help manage it in a better and more efficient way. Above all, European states and societies must realise that as long as the arc of instability exists around Europe, migration crises will happen. The best way to avoid them is to work to stabilise the regions where governmental authority and the rule of law is weak or collapsing. Investing in the rule of law, security and economic recovery in Ukraine and Libya is not utopian altruism or Western interventionism, but a sound policy based on self-interest. If Europe does not take its immediate neighbourhood seriously, be it out of stinginess, a lack of interest or the desire to be left alone, it may soon wake up with another million refugees from North Africa or Ukraine knocking at its door.
* The European Court of Human Rights however decided that so-called push-back operations, that is the interception of migrant boats at sea and sending them back, for instance to Libya, before they reach European ports without giving the migrants a chance to apply for asylum is illegal.
Przemysław Roguski is an international lawyer based at Jagiellonian University in Kraków, where he is an assistant lecturer at the department for public international law and a DAAD lecturer and coordinator for the school of German law. He is a graduate of Johannes Gutenberg-Universität Mainz and Trinity College Dublin. He is also a German Assessor.