Did we manage this?

Polly Botsford

Three years ago, the unprecedented refugee crisis confronting the EU prompted German Chancellor Angela Merkel to state confidently ‘We will manage this.’ Global Insight assesses the wide-ranging responses to the ‘palpable panic’ and how effective they’ve been.

In the summer of 2016, ‘in an atmosphere of palpable panic’, as the Migration Policy Institute put it, European Union leaders signed a €6bn deal with Turkey to take on the EU’s refugees. As a result, by 2017, asylum applications from war-torn Afghanistan, Iraq and Syria into the EU fell by a dramatic 43 per cent compared with 2016 figures to just over 700,000 (according to the European Asylum Support Office).

The EU-Turkey deal has since been positioned as part of a package of EU measures aimed at tackling the 2015 refugee crisis, when 1.26 million people arrived on EU’s borders seeking asylum. The deal sits alongside several legislative changes, funding proposals and a drive towards a Common European Asylum System.

Critics argue that the EU’s approach is fundamentally flawed because it is driven by an unspoken philosophy to keep refugees out. For its part, the EU argues its policies are there to better manage migration, to distinguish between the good immigrant and the bad – so that there are policies to fight against irregular migration and trafficking – and to offer protection where there is a genuine need.

€6bn deal – but at what price?

The tipping point for change came when a photo was released by Sea-Watch showing a German volunteer holding the lifeless body of a baby who had drowned in the Mediterranean following a boat capsizing. As a result of the thousands of deaths and wave upon wave of over-filled boats, the EU hastily pulled together emergency measures. These included an extension of the rescue operation, Triton, and funding for ‘frontline’ Member States.

But it was the EU-Turkey deal that really changed the landscape, leading to a huge reduction in applications. The negotiated agreement meant all new irregular migrants trying to get into the EU through Greece would be returned to Turkey. The quid pro quo for this returns policy is, first, €6bn to be used for refugee facilities in Turkey, second, a one-for-one approach on Syrian refugees (the EU agreed to settle one Syrian refugee from Turkey for each Syrian returned) and, third, to start the ball rolling again on Turkish accession to the EU.

The numbers dropped. A continued refugee crisis was averted. No more pictures of drowning children. But the EU-Turkey deal has a number of problems, not least that it may violate international law through the principle of non-refoulement. Turkey violates the principle that a refugee cannot be returned to a territory where his life or freedom would be under threat because it often sends people back to Afghanistan, Iraq or Syria ‘where they were clearly at risk,’ says Amnesty International’s 2016 report Tackling the Global Refugee Crisis. Furthermore, Turkey does not give ‘effective protection’ to refugees within its borders, particularly since the deterioration of the human rights situation in the country following the failed coup in 2016.

The deal is also short-sighted argues Elspeth Guild, Professor of Law at Queen Mary University of London and an immigration partner at Kingsley Napley, because it gives Turkey significant political leverage: ‘it leaves the EU vulnerable to Turkey, which can simply threaten to open its borders if the EU does not give it what it wants’.

In the slipstream of the EU-Turkey deal, the European Commission (EC) has been busy with a number of operational and policy initiatives as part of its European Agenda on Migration. As Susan Fratzke, a policy analyst at the Washington, DC-based Migration Policy Institute, puts it: ‘the deal with Turkey has given the EU some political space. Now that the crisis has abated, it can examine more permanent solutions and the functioning of the asylum system.’ Top of that agenda has been the issue of shared responsibility between Member States.

Perhaps one of the most difficult aspects of the refugee crisis is the fact that there are huge discrepancies between Member States both in terms of accepted policy over migration and asylum as well as the systems in place to respond to newcomers. As a result of the 2015 crisis, Germany’s Tempelhof Airport was converted into emergency accommodation, providing three meals a day and volunteers running a café and sports facilities, whereas other countries have created quasi-detention camps. In Austria and Hungary, as well as Denmark and the Netherlands, there is vocal anti-migrant sentiment gaining momentum in the countries’ respective elections.

These discrepancies sit at odds with one of the key policy initiatives of the EU, which is to try and share the load when it comes to refugees. At the height of the crisis, when thousands of people were arriving every day at the borders of Mediterranean Member States, the EU instigated a temporary, but compulsory, distribution scheme. This scheme used a ‘key’ based on specific criteria, including a country’s GDP, size of population, unemployment rate and existing numbers of refugees and mandated that each Member State take a certain percentage of refugees. Austria’s was 2.62 per cent, France’s was 14.17 per cent and so on.

But, despite EC claims that this scheme was ‘a success’ and that over 30,000 refugees have been relocated, the mandatory relocation scheme singularly failed: Slovakia and Hungary went so far as to challenge its legality; very few countries actually did what they were supposed to. Politically, it was too volatile to pursue or fine those countries that had completely rejected the scheme and the obligations imposed on them by the EU. The scheme was overtaken by the EU-Turkey deal, which alleviated the immediate crisis in Greece and Italy. By 2017, the relocation mechanism had been made voluntary.

Doubts over Dublin

The relocation issue has morphed into two distinct policy threads: first, a proposal to scrap what is known as ‘the Dublin System’, the law that dictates which country should be responsible for an asylum application. This system currently says that it is the first country of entry that must deal with the claim. Following the 2015 crisis, it became apparent that border countries that were the first entry country for hundreds of thousands of refugees could not cope under the existing system.

The second is to harmonise and standardise the asylum system across Member States. This second thread will, according to the EC, mean that those seeking asylum will be treated the same across the EU, easing the burden on those countries that currently, and for the foreseeable future, bear the brunt of arrivals. It should also limit what is known as secondary migration, where refugees move of their own accord out of the Member State where they have been granted asylum to other Member States where, perhaps, job prospects are better or family members are located.

In May 2016, the EC presented its reforms to the Dublin System. They introduce a ‘fairness allocation’ for when a Member State is under ‘disproportionate’ asylum pressure. Reform of Dublin sits alongside a host of other legal and procedural reforms and the overhaul of the asylum system (see below).

The more traditional path to managing refugees is resettlement, whereby displaced people’s potential to migrate into the EU is dealt with in-country, before they attempt to travel. This is the method most supported by the United Nations. In July 2016, the EC proposed an EU-wide resettlement framework to replace current ad hoc arrangements. By November 2017, the Juncker Commission put forward a recommendation that the scheme should bring in 50,000 refugees over the next two years and to set aside e500m earmarked to assist Member States towards this goal. By December 2017, the EC announced that almost 40,000 resettlement places had been pledged by 19 Member States.

The framework has yet to make it through the political process: again, the mandatory nature of the scheme, and the aim to distribute resettlement places across Member States (adopting the distribution key used for relocation) has led some to argue that resettlement will face exactly the same challenges as relocation.

There are also concerns that the conditions of resettlement are such that the framework looks more like the means for an EU Member State to be able to return people whose applications have failed; Amnesty International told the UK press that the proposals ‘are not about improving refugee protection globally, but about reducing irregular arrivals to Europe. They take good tools, like resettlement, and put them to bad ends; they use fine words, but these mask some pretty cynical intentions.’

The EC takes issue with this. A spokesperson tells Global Insight: ‘The aim of the EU’s resettlement efforts is to strengthen safe and legal pathways for vulnerable persons in need of protection. Resettlement should become the preferred way to apply for protection in the EU.’

Criticisms of the EC agenda, including relocation, resettlement and the reform of Dublin, have come thick and fast. Some argue that these tabled measures do not tackle the core problems facing the asylum system. First, there is what Guild calls the problem of ‘coercion’, namely that it is Member States, not the refugees themselves, who decide where they shall end up: ‘Member States tend to put refugees or asylum applicants where they don’t want to be. This is absurd because it is so expensive and serves no real purpose. It would be better to ask them where they want to go because that is probably where they will end up anyway. If they all want to go to the same place, then Member States/the EU have to provide incentives for them to go to other places instead; they have to have facilities and opportunities.’

The EC disagrees. ‘Asylum seekers should not be able to themselves choose which country they go to. This is precisely what the new Dublin System the Commission proposed is addressing, by putting in place a sustainable and fair system to decide which country should be responsible to examine someone’s asylum application and by ensuring that, in times of crisis, the responsibility is not put on one or just a few countries only.’

The EC spokesperson continues, emphasising the goal of standardisation: ‘We can only prevent secondary flows, asylum shopping and abuses if the grass isn’t greener on the other side and if there are actual consequences for those who are not following the rules. This means that asylum procedures, rights, obligations and conditions have to be the same in all Member States. It must be the norm that full assistance and support is only granted in the Member State that is responsible to process the asylum application.’

Guild believes that the EC should also concentrate some of its reform agenda on ensuring that the procedures allow for ‘proper time limits and proper appeal systems. Otherwise, cases get rejected and/or applicants become “non-returnable” and exist in a legal no man’s land. The truth is the EU often is not going to be able to get these individuals out of the EU and it would be better to accept that and be honest about that.’

The EC’s response is that ‘speedier and efficient processes’ are very much what the reforms are all about. Fratzke is not so much critical as pessimistic. She believes the reforms face fundamental obstacles. ‘These issues are so politically sensitive that the pragmatic view is, perhaps, not even to try to reform the system and impose these sorts of obligations on Member States,’ she says. ‘It is causing political consternation – there is this lack of trust between Member States and their ability to honour their obligations.’

Member States are concerned that other states might ‘free-ride’, meaning they fail to manage their borders or their own asylum seekers in anticipation that other states will do their work for them. Fratzke concludes: ‘If we don’t get agreement, then there will be a watered-down version with a few changes here and there, which won’t achieve what is desperately needed.’

Karl Waheed is Vice-Chair of the IBA’s Immigration and Nationality Law Committee and an immigration lawyer based in Paris. He agrees with this scepticism. ‘I cannot see a consensus among Member States,’ he says and points to recent elections in Europe as illustrating ‘the anti-migration stance beginning to get a strong foothold in the core of Europe.’

The charge of non-refoulement

The inability, politically, to enable proper reforms is one concern. However, even more serious charges have been laid at the EU’s door: that of potential violations of the principle of non-refoulement. This was raised in relation to the EU-Turkey deal, but is also cited against other EU policies.

Non-refoulement is enshrined in the 1951 Convention Relating to the Status of Refugees, and is referred to as the ‘cornerstone of international refugee protection’ by the United Nations High Commissioner for Refugees. Sternford Moyo is Senior Partner of Zimbabwean law firm, Scanlen & Holderness, and a former Co-Chair of the IBA’s Human Rights Institute. ‘There can be no doubt that EU countries have not been very welcoming to refugees and the attitude of some immigration officials can be regarded as a constructive return of the refugees to countries where they are escaping conflict.’ There have been a number of press reports, for instance, which claim that Italy and the EU are financing Libyan militias to stop boats from reaching international waters.

In relation to any procedure that may have the effect of refoulement, the EC categorically denies any breach of international law, and argues that such procedures are a matter for that Member State. ‘EU law requires Member States to ensure access to the asylum procedure for any person who manifests a wish to apply for asylum on the territory of a Member State or at the border,’ a spokesperson comments. ‘It is for Member States to put in place the necessary practical arrangements to implement this obligation.’

Migration is the most divisive and contentious subject on the European agenda, often fed by media vilification of ‘asylum seekers’. The EU has become stymied by the internal politics of its members as populist parties play the anti-immigrant – and usually also anti-Muslim – card. But there is plenty of migration that does not make the headlines, which is not the subject of such concern. ‘Asylum is only part of the picture of migration,’ says Guild. ‘If you look at residence permits, the number has not changed substantially over the years, about 2 million each year [across the EU]. Let’s focus on migration, not just asylum. The distinction people make is that migration/permits involves ‘useful people’ who are willing to work or skilled at work. But asylum seekers are really not that different.’

Slawomir Uss, a partner at Polish law firm SK&S and Council Member of the IBA’s European Regional Forum, agrees. ‘It is worth making a distinction between asylum applications/war refugees,’ he says, ‘and regular economic migration, which continues steadily and successfully into many EU countries.’

Uss gives the example of Poland, which has accepted around one million Ukrainians over the last few years. Some of these migrants are refugees from the war with Russia in Eastern Ukraine, but many are also a result of economic migration. ‘All of those migrants accommodate very fast – there is a similar language, which helps,’ he says. ‘Therefore, given a very smooth accommodation, the EU does not talk about it and does not have it on its radar – it is reasonably uncontroversial and broadly welcome.’

The EU does, however, continue to adopt the language of ‘illegal’ and ‘legal’ to simplify matters into ‘good’ and ‘bad’ migration – that is, it adopts the language of populism. It is understandable that the EU does this, playing to that gallery because it can’t risk anything else. Some might call that pragmatic, others cowardice.

Polly Botsford is a freelance journalist and can be contacted at polly@pollybotsford.com