Bursting the Bubble

What future for the international protection of refugees in Europe?

16 September 2016 | by

The year 2016 will undoubtedly be remembered as one of the most challenging for the European Union. The unexpected number of migrants arriving in Europe and the clumsy decisions adopted in response to the refugee crisis are spreading dissent over the entire European project, increasing the threat for the EU’s fragmentation. Hungary and Italy represent the most relevant examples of this trend, as they are currently amending their legislation to remarkably restrict asylum seekers’ rights within their territories.

The European Council President Donald Tusk has recently stressed the inability of the EU to host new waves of refugees, pleading with world leaders to increase their efforts to ensure refugees’ global burden sharing. These issues have led to rethink the existing reception policy, as the European Commission has recently enacted some measures to tackle the crisis and dispel the doubts over Europe’s future leadership.

However, the extent of its legislative proposals seems to be rather limited and the international protection of refugees in Europe is going to assume a different significance. These measures do not introduce any amendment to the criteria laid down by the Dublin Regulation. Its asylum seekers’ allocation mechanism is currently increasing the imbalance of reception responsibilities between Member States, undermining refugees’ safeguard within the EU. This Regulation forces asylum seekers to file their claims in the State of their first entry, creating migration hotspots where migrants are hosted in very harsh conditions.

Since the Commission proposals will confirm this regime, asylum applications will still be lodged into Members located at the external borders or in countries that represent refugees’ most desirable destinations. In addition, these reforms introduce specific sanctions for those asylum seekers failing to file an application in the Member State of first entry, depriving them of their reception rights and submitting their claims to an accelerated procedure. Consequently, irregular migrants and vulnerable people will be forced to live on the streets on a substantial scale.

These measures will further pursue cooperation with third countries, in order to reduce the number of arrivals to the migration hotspots placed at the European external borders. They seek to enhance the relocation of irregular migrants to non-EU neighbouring countries, in light of their acknowledgement as ‘safe’ for refugee protection under EU Law. These proposals empower Member States to declare as inadmissible the asylum claims filed by those asylum seekers transiting within these countries, where asylum seekers could have applied for international protection but decided not to do so. Member States will then dismiss their subsequent applications, on the grounds that they could have applied for asylum before reaching Europe. However, this recognition entails practical difficulties, in light of the conditions a country must fulfil to be considered as safe.

A country needs to comply with the international human rights standards, especially with the principle of non-refoulement. This provision prohibits the ‘push-back’ of asylum seekers where their lives could be at risk. However, the proposals adopted by the Commission may cause the automatic dismissal of asylum seekers’ claims filed in Europe, undermining this fundamental principle. The implementation of these reforms would enable Member States to assess their applications under an accelerated procedure. The latter aims to establish only whether an applicant transited through a safe third country where to send him back, without assessing the applicants’ effective need for protection in practice. Inevitably, this will increase the risk for the breach of international standards and human rights.

Furthermore, these measures seem to replicate the content of the EU-Turkey Statement within Europe, whose adoption has been controversial ever since. The acknowledgment of Turkey as a safe third country has been essential to alleviate the pressure on Europe’s external borders, relocating irregular migrants within its boundaries in light of the concept above. However, this recognition seems to be highly debatable, leading asylum seekers to challenge its validity before the Court of Justice of the European Union. Most notably, Turkey does not grant non-EU citizens with the refugee status within its territory and Syrian refugees are only provided with temporary protection. The NGOs present in the field also report of frequent illegal push backs of Syrian refugees at the Turkish borders.

Finally, the decision to suspend fundamental rights after the failed coup d’état raises questions over the safety of Turkey. Erdogan’s threat to reinstate the death penalty within the country has led some Turkish citizens to leave the country and apply for asylum in Europe, and it is likely to be even more frequent in the future. Thus, how can a third country be considered as safe for refugee protection, when it does not ensure fundamental rights to its own citizens?

In conclusion, the regime currently adopted by the EU seems to be mainly aimed at shifting its reception duties to third countries, stemming migration flows outside the Union territory. The European asylum policy highlights the recognition of safe third countries as a mean to control immigration, which enables Member States to order the transfer and the automatic rejection of the applications filed by those asylum seekers transiting within these countries. However, this acknowledgment involves practical uncertainties and may encourage collective expulsions and the violation of international standards. Tough the EU has been forced to adopt peremptory decisions to safeguard Europe from fragmentation, they seem to be detrimental to an effective protection of refugees and cannot accept the sacrifice of human rights as compromise.

What do you think?