Barnett Newman: Catehdra (1951), Stedelijk Museum Amsterdam
The externalization of European migration policy has resulted in a bifurcation of global human mobility, which is divided along a North/South axis. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. These cases concern core elements of externalization, being third country agreements (the EU-Turkey Statement of March 2016) and visa requirements for refugees. This article seeks to analyze these judgments in the context of the broader developments in European migration law and policy. The core argument developed here is that the bifurcation of human mobility is reflected in a bifurcation of law. Excluded people are not merely to be excluded from European territory, but also from European law.
Bifurcation of people, bifurcation of law. Externalization of migration policy before the EU Court of Justice, Journal of Refugee Studies 31 (2018), p. 216-239
On 5 August 2016, the UN News Centre published a picture captioned UN team in Jordan uses cranes to hoist aid to Syrian refugees at sealed border. The picture is taken from Jordanian territory. The low mud wall behind the trucks marks the Syrian border. At the time, Amnesty International reported that more than 75,000 Syrian refugees were living in the desert on the Syrian side. The text accompanying the picture reports that “life-saving food and other supplies from the United Nations” are being “hoisted by crane and monitored by drones across the closed frontier” in what is called “a unique operation.” The World Food Programme delivered food packages, the International Organization for Migration contributed bread, and the UN’s children fund UNICEF hygiene kits. This picture, as well as the perky accompanying press release, captures the outcome of international, and in particular of European policies vis-à-vis the Syrian refugee issue. In 2011, Syria had 23 million inhabitants. At present, some 11 million of them have been uprooted; 6.5 million of them are internally displaced (IDP’s, including the 75,000 people at the Jordanian border), and 4.9 million have sought refuge outside Syria.
For the full blogpost see Forced Migration Forum, February 7, 2017
On 8 December 2016, the Belgian court submitted prejudicial questions to the Court of Justice of the European Union (CJEU) concerning the issuing of humanitarian visas to a Christian Syrian family. The central question is whether international treaties and European Union law can oblige consuls and embassies of EU Member States to issue a humanitarian visa. This document (written as an advice- written on a pro bono basis – for the benefit of the lawyer of the Syrians) will discuss developments in the European Union with regard to humanitarian visas, the interpretation of the Visa Code in light of the Schengen Borders Code, the entitlement of the Syrian family in this case to asylum protection, the conditions in Lebanon as a ‘safe third country’ and the argument that a positive judgment of the Court will open the ‘floodgates’. The Conclusion of Advocate General Mengozzi was published on 7 February. In the judgment of 7 March 2017, the Court ruled that the issue is not covered by European law, but merely by domestic law (which includes inetrnational human rights law) . This judgment is addressed in my Bifurcation paper.
Thomas Spijkerboer, Evelien Brouwer and Yussef Al Tamimi: Advice in Case C-638/16 PPU, January 5, 2017.
From: Constant: 8 x la guerre (1951)
It is widely assumed that the German ‘decision to suspend Dublin and open the borders,’ epitomized by Angela Merkel’s ‘Wir schaffen das’, led to ‘uncontrolled mass migration’ in the summer and fall of 2015. This belief is not only held by media and politicians, but also by prominent academics like Ruud Koopmans. The empirical claim contained in this belief has two elements: one relating to the ‘suspension of Dublin’, and one relating to the ‘opening of the borders.’ Are these claims correct?
Read my blogpost on Border Criminologies.
From: Constant: 8 x la guerre (1951)
On March 18th, 2016, the EU and Turkey agreed that all irregular migrants arriving on the Greek islands were to be returned to Turkey. It is generally believed that this agreement has led to a dramatic decrease of the number of irregular migrants, and hence of the number of border deaths. Exemplifying this idea is this quote from the second progress report of the European Commission on the implementation of the EU-Turkey Agreement: ‘The sharp decrease in the number of irregular migrants and asylum seekers crossing from Turkey to Greece is proof of the Statement’s effectiveness – and in particular, that the business model of smugglers can be broken. The clear message to migrants is that getting on a boat in Turkey, and endangering lives in the process, is not worth the risk given that there is a legal and safe pathway through resettlement.’ Are these claims correct?
See my blogpost on Border Criminologies
It is hard to understand the current developments in European refugee law without the benefit of hindsight. This paper refrains from trying to make a comprehensive analysis, and investigates fragments small enough to allow for analysis. We will look at the political and legal processes which turned the influx of a small number of people into the European Union into a crisis; at tunnel vision of European policy makers; at the legal aspects of the EU’s and NATO’s intervention in the Aegean Sea; and at the processes resulting in the acceptance of mass deaths as a daily routine.
Minimalist Reflections on Europe, Refugees and Law, European Papers 2016, p. 533-558
April liet een spectaculaire daling zien van het aantal Syriërs dat in Nederland asiel vroeg: 101 tegen meer dan 5000 in oktober vorig jaar. Het lijkt erop dat de dichte grenzen in de Balkanlanden en het akkoord met Turkije over de terugname van asielzoekers de komst van Syrische vluchtelingen sterk hebben afgeremd. Is de vluchtelingen‘crisis’ opgelost? Allerminst: de deal met Turkije is kwetsbaar en bovendien juridisch kwestieus. Belangrijker is dat het Europese asielbeleid heeft aangetoond slecht te functioneren. Het is nu vooral zaak de gemeenschappelijke asielregels crisisbestendig te maken. Daarvoor lijkt echter de politieke steun te ontbreken.
Maarten den Heijer, Jorrit Rijpma en Thomas Spijkerboer: Dwang, verbod en grootse verwachtingen: over het falende Europese asielbeleid, Nederlands Juristenblad 2016, p. 1672-1682
In this paper, we address three connected central issues in refugee law. Firstly, who is entitled to protection? Secondly, what should that protection entail – merely allowing the presence of refugees in the territory, or allowing access to the labour market and health and welfare systems? Thirdly, where should refugees receive protection – in the first country in which they arrive after fleeing their home country, or elsewhere? We analyze the current crisis of European refugee law by looking back at the drafting history of the 1951 Refugee Convention. European policy makers can learn from the way in which the drafters partially solved these issues in 1950/1951.
Hemme Battjes, Evelien Brouwer, Lieneke Slingenberg and Thomas Spijkerboer: The Crisis of European Refugee Law: Lessons from Lake Success
Maarten den Heijer & Thomas Spijkerboer
In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties with third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).
The full blog post was published on EU Law Analysis.
This contribution explains the European asylum policy crisis from three structural weaknesses of the Common European Asylum System: its reliance on coercion within the EU; its unrealistic expectations of what borders can achieve; and the premise of prohibition of refugee movement in its external dimension. The article then critically reviews the proposals that the EU has submitted since the publication of the European migration agenda in May 2015.
Coercion, Prohibition and Great Expectations. The continuing failure of the Common European Asylum System, Common Market Law Review 53(2016), p. 607-642 (with Maarten den Heijer and Jorrit Rijpma)