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