Professor of Migration Law
Op 11 juli 1995 viel Srebrenica. Hoogleraar migratierecht Thomas Spijkerboer vreest dat de geschiedenis zich herhaalt in de vluchtelingendeal met Turkije. Acht tekenen aan de wand.
Turkije-deal kan nieuw ‘Srebrenica’ worden, NRC-Handelsblad 11 juli 2016
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
Book review of Nicola Perugini and Neve Gordon: The Human Right to Dominate (Oxford University Press, 2015), in Human Rights Law Review 19(2016), p. 395-401
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
This paper contains a brief introduction to the Deaths at the Border Database, including methodology, prelimiary outcomes and preliminary policy conclusions.
Deaths at the Borders: Evidence from the Southern External Borders of the EU, published in
HIJRA – La Revue Marocaine de Droit d’Asile et Migration 2016, no. 1
– English version: p. 5-23
– Arabic version: p. 24-36
Human rights are increasingly considered to be crucial for the legitimacy of European institutions. Since 1983, the Dutch Constitution opens with a chapter on fundamental rights, in the first place equality and non-discrimination. The 1998 Human Rights Act in the United Kingdom is another case in point. The European Union proclaimed its Charter on Fundamental Rights in 2000, and made it into binding law in 2009. These are formal phenomena, but they have effects in everyday life. People who want to make a point about Islam will easily refer to equal rights of women and LGBT people, which they are purported to lack and we are said to have. This happens in politics, at parties and in the pub.
Therefore, it is remarkable that human rights are being relativized more and more frequently as well. The Dutch prime minister, Mark Rutte, last Friday had to explain why he had not publicly raised the issue of freedom of expression when a Dutch-Turkish journalist had been arrested in Turkey after critical tweets about Erdogan. He defended himself by stating that behaving like a gorilla is not going to get us anywhere. This kind of statement is not an isolated thing. Over the past few weeks, human rights organizations Amnesty International, Human Rights Watch and the Syrian Observatory for Human Rights have published well researched reports about serious violations of the rights of Syrian refugees – from systematic refoulement to shooting them, including women and children. Prime minister Rutte and Dutch foreign secretary Koenders have systematically referred to these reports as “rumours”. They have made enquiries with the Turkish authorities, who have assured them that there is nothing whatsoever to worry about. There is “no reason at all to point a reproaching finger at Turkey.”
It might be objected that these statements are a bit awkward, but are related only to the refugee deal between Turkey and the EU. Because the Netherlands is President of the EU Council these months and the deal is very important, human rights have to be toned down. But this ignores that this is merely an escalation of a more long term process. Two years ago, Geert Wilders promised to make sure that there would be less Moroccans in the Netherlands. He now leads the polls, and faces criminal prosecution in court. When the Dutch legislation on family reunion was made stricter, there was wide support in Parliament for proposals which explicitly aim at reducing family reunion for people with a Turkish and Moroccan background. Why does Wilders face prosecution for something the Dutch legislator actually makes happen?
Human rights, like law in general, are always multi-interpretable. You can take them in different directions. The question, however, is whether they can be taken in different directions at the same time. That is what politicians of all shades are trying to do now, by turning up the volume on both points. They say ever more loudly how important human rights are. And they emphasize more and more that human rights are overdone – with the gorilla metaphor as a high point until now. The dissonance is increasing, and just as in music it will have to be resolved at one moment. Either Europe joins the likes of Putin and Erdogan, who find human rights silly nonsense. Or they join the ranks of people like Max van der Stoel, a former Dutch labour Party politician who, without ever raising his voice, unflinchingly advocated human rights.
Dutch version in NRC-Handelsblad 3 May 2016
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.
Wij, een overdonderende meerderheid van de kiezers, hebben gisteren gebruik gemaakt van ons democratische recht om niet naar de stembus te gaan. Vrijwel altijd geven wij trouwhartig gehoor aan de oproep om te gaan stemmen. Tot die malle deelraadverkiezingen aan toe. Maar gisteren hebben wij het vertikt om onze schoenzolen nodeloos te verslijten. We hebben namelijk, als we dat ergens goed voor vonden, al gestemd voor het Europees Parlement. En de Tweede Kamer vertegenwoordigt ons prima. Soms vinden we bij nader inzien van niet, en dan stemmen we de volgende keer lekker anders. Maar een handelsakkoord met de Oekraine? Straks moeten we nog gaan stemmen over de dienstregeling van lijn tien! Begrijp me niet verkeerd: we vinden de vertrektijden van de tram enorm belangrijk, maar die kunnen beter worden vastgesteld in een samenhangende afweging met allerlei andere dingen. We willen gewoon met de tram mee, en verder moet er niet aan onze kop gezeurd worden.
En onze kiezerspas? Laten we die opsturen aan het partijbureau van D66, die ons met dit gedoe heeft opgezadeld. Dan kunnen D66’ers op het kleinste kamertje wat antiparlementaire viezigheid van hun achterwerk vegen.
7 april 2016
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)
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?
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 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.
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:
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