Categorie archief: Crisis European Refugee Law Media

The systemic failure of the Common European Asylum System, as exemplified by the EU-Turkey deal

Yoko Ono: Ex It, 1997-2000, Istanbul Museum of Modern Art Collection

Yoko Ono: Ex It, 1997-2000, Istanbul Museum of Modern Art Collection

Maarten den Heijer, Jorrit Rijpma & Thomas Spijkerboer

18 March 2016

European politicians are doing lots of things to get the number of refugees under control – during the last few weeks mainly by wheeling and dealing with Turkey. The EU itself is cracking at the seams, Schengen may not survive, and a number of states is no longer prepared to abide by its international legal obligations. Yet the number of refugees in itself cannot be the problem. They constitute some 0,3% of the European population. Europe wants to keep refugees in Turkey, Jordan and Lebanon, yet these countries host 10 to 100 times as many refugees as Europe does. How can there be a crisis nevertheless?

Four system errors

In the past months, four system errors in the European asylum system have come to light. The first one is internal. The Dublin system distributes the responsibility for asylum applicants among EU member states, but it does so unfairly. If asylum seekers would be distributed in conformity with the Dublin system, Greece and Italy would be saddled with the vast majority of them. For a long time, these countries have tried to change the rules, but northern member states were not prepared to do so because the rules suited them just fine. The impotence – and at times unwillingness – of southern member states to maintain the system became evident. The Greek asylum procedure eventually turned out to be so substandard that it would be a violation of basic human rights to return asylum seekers there. Italy did little to prevent asylum seekers from travelling onwards. Because of the successful sabotage of countries along the Balkan route, countries like Germany and Sweden now discover how unfair the system can work out. Suddenly they do see the point of changing the rules, but now they face unwilling eastern member states.

The system is unfair for asylum seekers, too. There is European legislation in order to harmonise asylum law. But the chances of being recognised as a refugee can be twice as high in one member state compared to another one; and reception may function quite well in one country while in another people are sleeping in the streets. Refugees not only have a formal entitlement to international protection. They are also dearly in need of it. Just like the member states, they often have a substantial and reasonable interests in frustrating the system.

That is not allowed. The law is the law. So if member states and asylum seekers do not obey the rules, they have to be forced to do so. That is easier said than done. Rules that can only work through enforcement because key players find them unreasonable – this is a mission impossible in any case. This is true in particular between the EU and member states. The EU can only work via the member states, and therefore is rather defenceless in the face of obstruction.

The second system error consists of the great expectations of what borders can do – both as a matter of fact and as a matter of law. Borders cannot stop each and every refugee. The border between North- and South-Korea is pretty watertight, but does not only stop human beings but any form of economic traffic. Europe has enormous interests in smooth circulation of capital, goods and people. Systematically checking everyone and everything is possible in theory, but has enormous costs in terms of both finance and principles. People who propose to do this should mention the 10 or 20% of net income people would have to part with. It would require minefields. In addition, it would have a waterbed effect: when one route is closed, another will open. Usually the new one is longer and more dangerous and deadly. Also, the more borders are controlled, the more demand for smuggling is created.

From a legal perspective, it is also hard to make borders impermeable. People can only be returned to the country they came from if (1) that country is safe and (2) there is an opportunity to ask for asylum in individual (appeal) procedures. In the past, efforts have been made to sidestep these legal requirements, for example by picking up people in international waters and returning them (‘pushbacks’). These tricks are of the same calibre as Guantanamo Bay or the Russian secret service which thinks it actually is allowed to kill opponents with polonium provided they do so in London. The Grand Chamber of the European Court of Human Rights unanimously rejected such tricks in its Hirsi Jamaa judgement. Outside its territory, a state is not suddenly allowed to do things which it is definitely not allowed to do on its own territory.

The third system error concerns the schizophrenia in the external dimension of European asylum law. Refugees are granted asylum if they succeed in entering Europe, but European states use all means available to prevent from them getting in: visa requirements, airlines are forced to check documents before embarkation, transit countries are pressured to introduce visa requirements. By now, even Jordan, Lebanon and Turkey require visa from Syrian refugees. This did not lead to less refugees, but to more smuggling, because Syrians did not wait until their home was hit by a bomb too. Smuggling was so successful that, for example, Eritreans who had remained in Sudan for a decade thought: now or never. So: refugees were prohibited from leaving their country. This led to a more chaotic and probably a bigger migration flow than would have been the case if Syrians had been allowed to seek refuge. In addition, reception in the region was badly overburdened and absolutely underfinanced – in the past few years, only half of the money needed was available for the UN.

These first three system errors concern the content of policy. The last one concerns the form of cooperation, which is somewhere between complete Europeanization and classic intergovernmental cooperation. Asylum policy is based on minimum harmonization and mutual recognition of (negative) decisions. But implementing the legislation seeking to achieve that is up to the member states. The EU has no executive competences. Such a form of cooperation can only work if member states really want to work together because they have a common vision. That political will and common vision are nowhere to be seen.

The EU response

The Syrian refugees form the first stress test for the European asylum system. And what does the European response consist of? The first, internal system error is not addressed. Redistributing asylum seekers from Italy and Greece to other member states did not get beyond a few hundred people. The Dublin system will be revised, but without addressing the fundamental unfairness. A few extra rules of marginal importance may make the system a tiny bit less unfair, but will most definitely make it more complicated. Member states will still have an interest in sabotaging the system. The same is true for asylum seekers, because the important differences between national asylum systems remain.

The deal with Turkey is typical for the second and third system error. Boat refugees are to be returned straight away, in return for which some (which?) European countries would be prepared to accept some (which?) Syrians from Turkey. As long as the EU does not lift the visa requirement for Turkish nationals, it is entirely unclear why Turkey would have an interest in actually doing this. In addition, Turkey is absolutely not a safe country. The last time Turkey was condemned by the European Court of Human rights for inhuman treatment of an asylum seeker was 15 December last year. So refugees will still have a legitimate interest in continuing their trip to other countries. The main problem in Turkey is not a lack of money, but the lack of a proper functioning system of rule of law and the connectedness of refugees with vital political issues such as the Kurdish question. And why would redistributing refugees from Turkey to European countries work, while for Italy and Greece they did not get beyond a few hundred? Also, of course refugees will try other routes. In sum: the reaction to the Syrian refugee inflow consists of a continuation of the system errors which created the problem to start with. Externally, prohibition remains the dominant approach towards refugees; there are unrealistic expectations of wat borders are able and should be able to achieve; and the unfairness for states and refugees remain. The fourth system error – an unclear form of cooperation which only works if states really want it to work – is not addressed either.

What is the alternative?

Just like the banking 2008 crisis could not be solved in a few weeks or months, the number of refugees cannot be brought under control as long as the conflict in Syria has not been resolved. For the short term, Europe will have to clean up the mess it has created by 25 years of ill conceived policies. Two things are important for this. First, states have to be prepared for high numbers of refugees, not because we are Gutmenschen but because it is better to be prepared for things that are bound to happen. Secondly, an effort has to be made to undermine the lively smuggling economy by unconditional resettlement of large numbers of Syrian refugees from (in order of urgency) Lebanon, Jordan and Turkey. This will reduce the demand for smuggling, and it will enable those countries to host a considerable number of refugees in an acceptable manner.

For the longer term, Europe has to engage in a fundamental reconsideration of its asylum policy. The internal unfairness, the excessive expectations of the border, and the prohibition of flight have to be abandoned. Which topics will be subject to which forms of cooperation has to be assessed in a comprehensive manner, and not in impromptu deals on details. An encompassing refugee policy has to be based on the following principles:

  • Refugees do not only have the right to flee violence and oppression; they will do so as a matter of fact, whether we like it or not;
  • Neighbouring countries offer great opportunities for protection, but have to be generously funded for that; large scale, unconditional resettlement is necessary if countries are overburdened like Jordan and Lebanon;
  • Borders can be used for checking who gets in, and for assessing who is to be kept out; if they are expected to do more, this results in irregular migration and death;
  • The European asylum system has to be fair for member states and refugees.

A policy that is based on these principles would make an end to the unrealistic governance fantasies on which present day policies are based. And they would ensure that the principles on which Europe is based are not treated like garbage.


Maarten den Heijer is assistant professor of international law at the Universiteit van Amsterdam; Jorrit Rijpma is associate professor of European Law at the Universiteit Leiden; Thomas Spijkerboer is professor of migration law at the Vrije Universiteit Amsterdam.

A Dutch version of this text was published in NRC-Handelsblad 19 March 2016

Asielzoekers teruggestuurd door de NAVO, mag dat?

Op donderdag 11 februari 2016 meldde NAVO Secretaris-Generaal Stoltenberg dat NAVO-schepen onmiddellijk naar de Egeïsche Zee zullen gaan om de zee te bewaken tegen illegale migranten, in samenwerking met de relevante autoriteiten en in direct contact met Frontex. Is dit verenigbaar met het internationale recht?

Deze blogpost werd volledig gepubliceerd op Verblijfblog.

EU Border Plan is a Texbook Example of Tunnel Vision

16 December 2015

(With Tamara Last)

From: Constant: 8 x la guerre (1951)

From: Constant: 8 x la guerre (1951)

The European Commission presented a proposal for a European border policy on 15 December 2015. At the core of its proposal is the European Border and Coast Guard, which to a large extent federalizes European border law and policy. The tools the European Border and Coast Guard would use are intensified versions of the tools of Member State border policies over the past 25 years: more controls, more technology, externalization through more cooperation with third countries, and internalization through more emphasis on forced return. The entire package consists of several documents jointly amounting to hundreds of pages. A first analysis leads to three observations.

The full blog was published on Border Criminologies.

Geert Wilders’ grandma was a refugee too (with Martijn Stronks, 2015)

12 November 2015

Thomas Spijkerboer & Martijn Stronks

Are Europeans prepared to offer protection to non-Europeans? That is the central question in the refugee debate. The apparent reluctance to do so has everything to do with the fact that refugees are regarded as outsiders. That is why it is important to remind people that refugees belong to Europe like Bert and Ernie belong to Sesame Street. Recent history shows that Europeans and refugees are not mutually exclusive; quite the opposite. Their protection is purely and simply a matter of self-interest.
During WWI, a million Belgians fled to the Netherlands. Most returned when the war was over, but not all. Virginie Korte-Van Hemel (Dutch state secretary of justice from 1982 to 1989), for instance, was the daughter of Belgian musician and refugee Oscar van Hemel.

After 1933, many Germans fled to other European countries and to the United States (the Manns, the family of Anne Frank, Albert Einstein) where, after the Anschluss in 1936, they were joined by Austrians (among whom Sigmund Freud, who fled to London). The Spanish civil war (1936-1939) led to an exodus of Spaniards, most of whom ended up in France. Writer Jorge Semprun was one them. Many fled from occupied countries to Britain, like Erik Hazelhoff Roelfzema (of musical Soldier of Orange fame) and the High Commissioner for Refugees Van Heuven Goedhart. A small number of Dutch Jews managed to flee to safety. After WWII, millions of refugees were milling around Europe, so many in fact, that a special International Refugee Organisation was founded to deal with them. Displaced people included German minorities from Poland and Czechoslovakia (Günter Grass), Jewish survivors, and groups on the run from the advancing Red Army.

A separate group came from the Dutch Indies and Indonesia to the Netherlands. They were ethnic Dutch or ‘Indo’s’ who fled the fighting of the war of independence (the Bersiap period, the “police actions”). They were categorised as repatriates although many of them had never set foot in the Netherlands before, or hadn’t been there for a very long time. Although many had the Dutch nationality and couldn’t be classified as refugees in the legal sense, their departure felt like flight and their welcome in the Netherlands was like that of refugees. One of Wilders’ grandmothers, and Dutch housing minister Stef Blok’s father came to the Netherlands as repatriates. In 1951, 12,500 Moluccan troops of the KNIL Royal Indonesian army were transferred to the Netherlands on the order of Dutch courts because their life and safety were in danger in the newly independent Indonesia. They were treated as refugees although they were formally kept outside the scope of the 1951 UN Refugee Convention.

From 1945 to 1950 international relations became increasingly tense. A slow but steady stream of refugees from the communist countries entered Western Europe. More came after the communist take-over in Czechoslowakia (the father of human rights activist Boris Dittrich), the Soviet invasion of Hungary in 1956 (Dutch state secretary of agriculture Dzsingisz Gabor) and Czechoslovakia in 1968 (TV presenter Martin Simek and tennis player Richard Krajicek).

Until 1975, refugees also came from countries with fascist regimes. Greeks, Spaniards and Portuguese who left for political reasons often didn’t claim refugee status because it was easy for them to get residency permits as migrant workers.

Between 1992 and 1995, many refugees from the former Yugoslavia were given asylum in Western Europe. In 1999, refugees from Kosovo also made their way to Western Europe until NATO managed to put a stop to the incipient genocide of Kosovar Muslims by a military intervention against Serbia. The number of asylum seekers and the problems of housing them were as great then as they are now.

We Europeans are refugees ourselves. Modern history shows that we’ve had to seek refuge in and outside Europe on many occasions. It also shows that we, European refugees, time and again managed to make things work in our new home countries.
But this history uncovers something even more fundamental. Protecting refugees is not altruism. It is a mutual insurance policy. I hope my house won’t burn down. But it might happen and so I pay my insurance premium every month. Meanwhile I hope that I won’t need that insurance but that someone else will benefit from it. That seems altruistic, but it isn’t, because I know I’m covered as well in the event something happens to me. Or, as soccer legend Marco van Basten is supposed to have said: when I play against Germany I bet on a German victory. That way I can’t lose.

The same is true of refugee law. We, as members of the global community, have agreed to help each other out in times of trouble. If all we have to do is sheltering refugees, we should not complain. Instead, we should count ourselves lucky that we’re not the ones having to seek refuge. And we know that if that sea level keeps rising our grandchildren will find a new home elsewhere, too.

Published in Dutch in NRC Next and NRC Handelsblad, 12 November 2015
Translation Hanneke Sanou

Border control has boosted irregular migration

30 October 2015

These days, strengthening European border control is often presented as a solution for the chaos surrounding migrants and refugees. The EU even has a joint marine force in the Mediterranean and the Security Council recently gave its blessing to this military approach to migration. Tough action will be taken against human smugglers, through criminal legislation and intensification of prosecution. Opinion leaders often argue that Europe should finally begin to guard its borders. This suggests that European external border are not or insufficiently guarded.

What has been done in the past 25 years to combat irregular migration? Until 1990, European countries all had their own visa policies. From most countries in the world at least one European country could be reached without an entry visa. Therefore, most people didn’t need a smuggler. As part of Europeanization, this has changed. Today, all EU countries require visa from nationals of poor countries. In addition, Europe has forced transport companies to check passports and visa before travellers are allowed to board an airplane or ferry. Also, the technical quality of documents has improved considerably. As a consequence, it is much more difficult now to enter Europe by plane or ferry without being in possession of all documents.

This policy ended temporary migration (including seasonal migration) from the Maghreb to Spain and Italy. Travel became so burdensome that those who had succeeded in enter Europe now remained there. Furthermore, the permanent intensification of these policy measures led to an ever increasing demand for human smuggling, by land or by sea. Europe responded by guarding its borders ever more strictly. Fences appeared, infrared cameras, radar and satellite systems, negotiations with transit countries were started, in addition to the traditional coast guard the navy was put to use, criminal sanctions were introduced, a separate EU agency was created (Frontex), European border guard operations were carried out (with ancient Greek names such as Poseidon, Hera, Trition). The private security sector alone has an estimated annual turnover of €7 billion of European border business.

The notion that Europe should finally begin doing what it should have done straight away (namely: guard the external borders) therefore has no basis in reality whatsoever. But the European Commission and other policy makers don’t tire of repeating that these policies have had no visible effect, and consequently … should be intensified. Of course, this is a remarkable conclusion. The facts suggest that irregular migration has not diminished over the past 25 years, but that it has increased and that human smuggling has not been combated successfully but has become booming business. The number of people dying at the borders of Europe has skyrocketed and now runs into the thousands each year.

Researchers in Europe and North America (where the situation is similar) have a quite different analysis of the same facts. They show it is likely that American and European migration policies have not reduced irregular migration over the past 25 years, but has amplified it. Ever ‘smarter’ border policies have increased the demand for human smuggling. The increasingly strict approach of smugglers leads to higher prices for smuggling, with rising profits and more entrepreneurs entering the market for smuggling. And because smuggling is not a mafia-like, hierarchical organisation but a network of many individual actors, the repressive approach stimulates the market much more than it destroys the business model of smugglers. Intensification of migration policies often occur after disasters at sea. Norwegian researcher Jørgen Carling summarized his analysis in this diagram.
Jørgen Carling 2015
Hein de Haas (Oxford/University of Amsterdam) shows that human smuggling is not the cause of migration, but a consequence of European migration policies. Empirical analyses such as these are ignored by policy makers and opinion leaders. To the extent that they take notice of them at all, the response is purely ideological. So you want open borders? You don’t think it is criminal to let people drown at sea? The response is not that the alternative analysis is factually incorrect, or not plausible; instead it is that the alternative analysis cannot be true. This is pure tunnel vision. There is an exclusive attention for just one version of reality. The conclusion has to be drawn before the analysis is made: policy has failed, so what we need is more of the same policy. The facts of these researchers are opposed not with facts, but with opinions.

The rhetorical weakness of the alternative analysis is that it does not enable one to make grand gestures. European opinion leaders and politicians can prove their decisive courage. Go guard the borders, at last! Bomb Libyan smuggler boats! The alternative analysis does not allow sturdy and masculine conclusions, but concludes that migration policy is a matter of Scylla and Charybdis. There are no complete solutions. As long as global inequality remains as it is, we will have to choose between several evils. Meddling through is the only option, but that can be done a bit less short-sighted than now.

The un-rhetorical character of this alternative analysis should, by and of itself, be sufficient to find it more plausible than the one that dominates the media and politics. But in these overheated times, display of decisiveness is much more important that having a correct analysis of the facts. In light of the chaos to which that leads, Europe is likely to pay dearly for this short-sightedness.

Dutch version published in De Volkskrant, 30 October 2015

Reception in the region – or dumping?

13 October 2015

The problems which Europe is facing with sheltering refugees are a consequence of the utter failure of the reception of refugees in their region. This failure was caused by the short-sightedness of the international community, last but not least of Europe. Since the outbreak of the conflict in Syria four years ago, in front of our own eyes millions of Syrians fled to Lebanon, Turkey and Jordan. In 2013 and 2014, the international community has raised only half of the money needed for humanitarian assistance to Syrian refugees in these countries. Increasing numbers of Syrian refugees became desperate. This created an increasing demand for the services of human smugglers. This demand was met by an enormous supply, which is being used by others besides Syrians as well. Short-sightedness created a fabulous market for human smugglers, and the result of that we see on TV every day.

The failure of reception in the region is nothing new. Many large groups of refugees have been forgotten, like the Palestinians after 1948 and 1967, the Afghans since 1979 and the Somalians since 1990. Millions of them are still in refugee camps without any prospects. Many of those migrate, and some of them become interested radical movements. It is in Europe’s best interest to do better.

In the short run, the consequences of this policy failure are a given fact. European countries will have to begin by clearing up their own mess. This means sheltering lots of asylum seekers and examining their applications. The EU wants to destroy the business model of smugglers – an excellent idea. But the instrument the EU intends to use is further criminalisation and prosecution of smuggling, including by military means. But precisely that is part of the policy that has gotten Europe in the mess it is in. If you want to destroy the business model of smugglers, the demand for their services has to be diminished. In the short run, this can be done if the world’s richest countries abolish visa requirements for groups such as Syrians, Eritreans and Rohingyas. Furthermore, massive investment in reception in the region is necessary, immediately. The EU seems to have woken up to the need of emergency aid for Syrians; but for other groups a sense of urgency is nowhere to be seen.

In order to prevent the kind of anomalies Europe is witnessing today, in the long run reception is the region has to be taken seriously – at last. Reception in the region is only possible if emergency aid for refugees is generously funded. This has not even nearly happened in the past half century. Emergency aid by its very nature is temporary. Protection in the region is only a realistic notion if there is a prospect of durable solutions. First, that could be return to the country of origin. In most situations, regrettably that is an illusion. Safe zones in Syria would require large scale military intervention, and these tend to lead to more, not less refugees (think of Afghanistan, Iraq, Libya). Furthermore, as a Dutchman I am acutely aware that the safe havens in Bosnia were not terribly successful. Therefore, practically speaking durable solutions come in two kinds: local integration, and resettlement elsewhere.

The overwhelming majority of the world refugee population is finding protection in the region. Three issues make this problematic. First: if refugees are entangled in a wider political conflict (Palestinians, Kurds), the rest of the world would be wise to prepare for migration of refugees from that region. Second: if there are simply too many refugees, that means end of story. In Lebanon, over 25% of the population now consists of Syrian refugees. The situation of the half million Palestinian refugees in UN camps makes perfectly clear to them what happens if refugees trust the international community. Third, there is a risk that (because of international aid) refugees are better off than the local population. Therefore, protection in the region should be part of a broader development policy.

So, regional protection should imply asking the countries in the region how many refugees they can integrate, in particular by naturalising them after some years. They should be asked what they need so as to be able to do that.

People who cannot integrate in the region should be offered a durable solution elsewhere. This requires a substantial increase of the number of refugees offered resettlement in Western countries. It would be a good thing to stimulate private initiatives, such as the Canadian sponsor system which allows churches and other groups to sponsor refugees.

In itself, it is possible to prevent the problems caused by the short-sighted policies we are seeing now. These situations are problematic, both for small villages swamped with asylum seekers in 48 hours, and for the refugees themselves. This requires loyal cooperation with countries in the region. Until now, these countries have every reason to distrust Europe, because “reception in the region” until now meant, first and foremost, that European countries tried to dump refugees in countries which were completely overburdened already.

Published in Dutch in NRC Next 13 October 2015, and NRC Handelsblad 15 October 2015