Refugees: ‘how could we possibly get here?’

The European Union is crossing human-rights red lines with its Common European Asylum System.

The approval last month by the Council of the EU of the latest reform of the Common European Asylum System met massive protest from organisations associated with human rights, sea rescue and refugees, as well as other charities, aid workers and lawyers. While part of the CEAS reform is reasonable, the procedures at the borders have, rightly, been castigated as the most massive tightening of refugee law in decades.

The proposal approved by the council was even said to undermine the foundations of the individual right of asylum and the prohibition of refoulement, enshrined in the 1951 Refugee Convention, since deportations to unsafe third countries and (chain) deportations into persecution in the country of origin would be facilitated. Vulnerable refugees—even children—could be taken into custody for deportation.

‘How could we possibly get here?’ a colleague recently asked me. The tendency to disrespect refugee rights is by no means new. On the contrary, it is the consequence of the CEAS’ conflicting goals from the outset.

EU asylum policy must, first, provide protection to refugees, in accordance with the Geneva convention and the EU’s own standards, while taking into account member states’ requirement to control their (common external) borders. It must, secondly, establish common asylum procedure and protection standards and commit member states to their implementation, while having to take seriously the ‘sovereignty’ aspirations of some member states, without which common decisions cannot be reached. It must, thirdly, ensure fair responsibility-sharing for refugees—but it is encountering a lack of solidarity among an increasing number of states.

Security-policy slant

Already in the past two decades, and under massive influence from some member states in the council, asylum policy had acquired a strong security-policy slant, at the expense of human-rights and refugee-law obligations, in the wake of the ‘September 11’ attacks in the United States. The practical consequences were the development from 2004 of the European Border and Coast Guard Agency, Frontex, as well as technologisation and digitalisation and the strengthening of border controls.

Displacement and migration were more and more understood in their ‘external dimension’—as foreign and even defence policy. Control of people movement thus came at the expense of access to asylum procedures and the granting of protection.

The ‘Dublin system’, under which refugees were required to seek asylum in their member state of arrival (supposedly to stop ‘asylum-shopping’), had never worked thoroughly even before the strong displacement of 2015-16. It collapsed under the influx of numerous refugees in the countries with external EU borders. Hundreds of thousands moved on to Germany or Sweden from the overburdened border states.

The result was strong polarisation among member states over an EU-wide protection system and a more harmonised asylum policy. A group of countries, led by Poland and Hungary, has ever since opposed (mandatory) redistribution of refugees among member states and introduced highly restrictive national policies—even erecting new fences and border-control systems while affirming ‘zero immigration’.

Co-operation with autocrats

From then on, much of the EU funding and the activity addressing people movement has focused on border protection and co-operation with third countries—often autocratic—supposedly to help counter ‘irregular migration’. This included the 2016 EU-Turkey statement specifying refugees fleeing the horror in Syria and controversial in its effect. It has also entailed co-operation with the Libyan coastguard, against which enormous human-rights concerns have been raised, to stem the flow of individuals from elsewhere in Africa passing through the chaotic state.

EU-specific negotiation formats, for example with African states, and so-called migration partnerships have also been developed. These link co-operation on the movement of people—and, above all, returns—with other arenas such as trade, development and economic or environmental policy.

Even where common protection standards have been set, member states have often failed to comply. Worse still, in clear violation of international and EU law, member states, and arguably Frontex, have tolerated or even supported pushbacks in the Aegean Sea, at EU land borders and in the Spanish exclaves in north Africa. This turning back of people seeking protection, without access to an individual asylum process, too often goes unpunished, since the European system provides too few incentives to follow international and self-imposed rules.

Still unbalanced

Although the securitisation and externalisation of European migration policy had long been the subject of harsh criticism, the European Commission’s 2020 proposal for a reform of the CEAS barely pointed in a new direction. After a long period of profound disputes over refugee policy, its goals were to regain member states’ confidence in the viability of the system, stop the ‘downward spiral’ in granting protection standards and establish a new framework for an orderly policy on people movement—including the still highly controversial question of how to ensure a fair distribution of those seeking protection among member states.

Yet between the goals of guaranteeing refugees fundamental human rights and managing the movement of people, the package presented in 2020 was still unbalanced. It continues to rely on third countries and repatriation, while remaining vague on human-rights monitoring for refugee protection and refugee rights of access.

The recent asylum compromise in the council coincided with the disastrous capsizing of a refugee boat in the Aegean, in the wake of which more than 600 people seeking protection lost their lives and the responsible authorities distinguished themselves by actively looking the other way. In contrast to a similar event near Lampedusa in Italy in 2015, there was no outcry among the European public or at the ministerial meeting.

This comes as no surprise: the shift towards right-wing-populist governments or conservative administrations dependent on them tilts the already precarious scales between control of movement and refugee rights completely out of balance. In the most recent polls, too, a clear majority of Europeans surveyed are in favour of a more restrictive policy.

Questions remain

By the beginning of next year, EU home-affairs ministers and the European Parliament will have to agree regulations on asylum procedure and asylum and migration management. Many questions remain open as to the protection of asylum-seekers: how many will end up in border procedures, what their accommodation in closed camps at external borders will look like, which member states will participate in the new distribution system and what role the European agencies will play in asylum procedures. Above all, it remains open how access to asylum, to legal remedy and to decent, rights-based accommodation can be ensured.

One thing is certain, though: asylum policy will become more restrictive, continuing an enduring trend of securitisation and externalisation, at the expense of granting protection.