UK Immigration News: The EU’s migrant crisis–a moral dilemma
OTS Solicitors Immigration specialists in the corporate and business immigration departments at OTS Solicitors, discusses what challenges the EU and its member states are facing in relation to migrants and describes how the lack of EU solidarity and willingness to share responsibility are serving to compound the problem.
The EU's migrant crisis--a moral dilemma
Immigration analysis: Dr Lusine Navasardyan, an Immigration specialist in the corporate and business immigration departments at OTS Solicitors, discusses what challenges the EU and its member states are facing in relation to migrants and describes how the lack of EU solidarity and willingness to share responsibility are serving to compound the problem.
What is the current legal framework in relation to refugees arriving in the EU? Is every country individually responsible?
Since the European Council meeting in Tampere in 1999 EU has continuously pledged its intention to harmonise the legal framework in relation to refugees arriving to EU and establishing a Common European Asylum system. Unfortunately, these efforts have yet to produce any meaningful results.
Currently, the legal framework in EU in relation with Asylum seekers is comprising of the following:
The revised Reception Conditions Directive ((2013/33/EU) which is supposed to ensure that there are humane material reception conditions (such as housing) for Asylum seekers across the EU and that the fundamental rights of the concerned persons are fully respected. According to this direction detention should only be applied as a measure of last resort.
The revised Qualification Directive (2011/95/EU) is aimed to clarify the grounds for granting international protection and is looking to establish a common approach in decision making process in Asylum cases in different EU countries, as the experience of previous years has shown that the success of Asylum cases in different EU countries differs largely.
The revised Dublin Regulation is aimed at enhancing the protection of Asylum seekers during the process of establishing the State responsible for examining the application. This regulation is also responsible with clarifying the rules governing the relations between states and, creating a system to detect issues in national Asylum or reception systems.
The revised EURODAC Regulation creates a system that enables EU countries law enforcement bodies to help identify Asylum applicants and persons who have been apprehended in connection with an irregular crossing of an external border of the Union. By having a fingerprints>Asylum applicant or a foreign national found illegally present within an EU country has previously claimed Asylum in another EU country or whether an Asylum applicant entered the Union territory unlawfully.
Regrettably, all these regulations, despite the proclamations of noble purposes in their texts, seem to be mostly directed at making sure the refugees remain the problem of the country of the point of their entry, rather than become a problem for the entire Union. This, puts an unreasonable strain on the EU countries with external borders, especially those on east and south of the Union. The situation is made worse, through the fact that often enough, these are countries less equipped to deal with such strain, as few of EU’s economically powerful nations are point of mass entry for refugees.
This kind of approach, ultimately makes it look, like indeed, each country is individually responsible, despite the fact that EU is supposed to be operating on the values of solidarity and creating a common area of states equally committed to values such as humanitarian protection and Human Rights. Moreover, Asylum and Immigration issues were transferred to the European Union by the Member States in the 1997 Treaty of Amsterdam (art. 63), however the reality remains one of deep division. We’ve already seen the unfortunate effects of such policies with the Lampedusa migrant crisis.
What programs have been implemented to address the refugee crisis (eg Mare Nostrum, Triton) and how successful have they been?
It is important here to distinguish between the refugees and migrants. It has already repeatedly shown that only a small portion of migrants reaching EU’s shores apply for Asylum. For instance, while approximately 170,000 migrants have reportedly reached Italy or been rescued and brought to Italy in the last 14 months, according to UNHCR and Eurostat figures, very few of them are applying for Asylum in Italy. While some of them try to reach other destinations and apply for Asylum there, most of those migrants will not file Asylum claims. Many of them have no real prospect of succeeding in such claims if they do.
To qualify for refugee status a person should be able to prove persecution on account of religion, race, nationality, membership of a particular social group or political opinion. Most of the migrants, even those risking life and limb to illegally enter the country of destination, either do not qualify for refugee status, or can’t prove their claims of persecution. Most of the migrants coming to European shores are economic migrants and while the life they flee from in their home countries may very well be horrific in terms of economic and social well-being, it does not qualify them for seeking an Asylum.
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The distinction, we insisted on making, is essential for one reason. The regulations aimed at harmonising the Asylum laws, even if successful, which they currently are not, as we’ve seen above, will never prove efficient in managing a crisis that is essentially a migrant crisis, not a refugee one. Both, the Mare Nostrum and Triton, are operations aimed at rescuing the distressed migrant ships and patrolling the border. Admittedly, Mare Nostrum was a bigger operation, better funded and with wider range, as it would actively seek ships in distress up to Libyan shores. Triton, a joint European operation is more of a border patrol operation than one aimed at rescue and it will be operating much closer to Italian shores.
Operation Triton, is an acknowledgement of sorts that migration and border control in EU should not be seen as the problem of the particular country. So, in that sense, it is surely a welcomed step. Unfortunately, once again, the implementation of the grand idea is lacking especially since this operation is an exception, rather than a common place.
Is it better to adopt policies of deterrence or to accommodate newcomers? Is the EU facing a moral dilemma?
Many have expressed the idea that the Italian operation of Mare Nostrum had deepened the migrant crisis, by sending signals that the passageway had become safer, thus encouraging more migrants to take the journey. While this ideas might have some real base, as the figures suggest more migrant influx through the Mediterranean since the start of Mare Nostrum, allowing people to die by way of providing deterrence from seeking to enter EU is not and should never be a part of an acceptable public policy. In this respect, EU is surely facing a moral dilemma. The European Union in general and the member states have long proclaimed their commitment for humanitarian values and Human Rights. In this situation turning our back at the distressed and in danger of dying cannot be a solution. Yet, unlimited or uncontrolled access into the member states is, of course, not a solution either, as it will eventually put an unbearable strain on the EU countries.
The unfortunate truth is, that no matter what operations and programs are implemented to patrol the borders or rescue the distressed ships or other forms of transportation, the extreme migration problem will persist as long as the situation in the many parts of the world, and especially in the countries with borders with EU remains one of economic and social hardship, filled humanitarian disaster and lack of protection for Human Rights. Addressing these problems worldwide is the only way of having any success in controlling the migration without going back on our commitments to Human Rights. Until then, the human nature will always dictate that the individual is to seek better life and nothing we do will change that.
Have the 2003 Dublin regulations failed? Should changes be made and if so which ones?
In a way, yes, Dublin regulations have failed, but perhaps the failure should have been expected as the very idea of the regulation is flawed. As mentioned above current EU legal framework in the Asylum area seems to mostly be aimed at making sure each country contains their own refugee problem within their own state. Dublin Regulation is aimed at protecting the refugees during the period of time the EU countries effective quarrel over the fact whose problem the particular refugee should be. While the desire to help, protect and safeguard is admirable, what needs addressed is the policies that create the very problem.
The Dublin II – Lives on hold report concluded “The efficacy of the Dublin Regulation is questionable. Only a limited number of outgoing requests result in implemented transfers. The fact that certain Member States frequently exchange equivalent numbers of Asylum seekers between themselves highlights the illogical nature of the Dublin system. There continues to be a paucity of information on the financial cost of this system. In order to enable a complete appraisal of the effectiveness of the Dublin system it is imperative that there is a thorough cost-benefit analysis of applying this Regulation.”
This findings should hardly be seen as a surprise, for one simple reason – the need for Dublin regulation, arises from unwillingness of EU member states to be solidarity and collectively responsible for the general influx of refugees to EU. No changes will make any material difference because the problem it tries to solve is born out of responsibility shifting.
However, if we were to consider changes to Dublin regulation, a more clear and harmonised interpretation of the Regulation by all the member states should probably be one of the main aims. The principle of family unity should be followed more exactly and clear deadlines applied for examining the transfer cases and operating the transfers should be in place.
The EU is dedicated to the principle of Human Rights, what duties is it under in relation to refugees arriving at its borders and are any duties being breached or neglected? Have the affected countries been left hanging by the EU?
The principal duties in relation to refugees are the duty to admit refugees and process their claims, to provide protection and have mechanisms in place to respect their Human Rights. Currently, EU and the member states are often failing at processing the Asylum claims in a reasonable amount of time, resulting in situations where the Asylum seekers not only live in a prolonged state of uncertainty, but also become destitute, as they often are refused access to work while their application is being considered. In the UK the right to work becomes operational only after a period of 12 months and it’s not an automatic right, but rather a permission granted by Home Office. Another big problem is the lack of enough consideration that is given to family ties in deciding the country in which the Asylum claim should be heard.
However, it is perhaps inappropriate to put the blame for failing on the EU and assert that the affected countries have been left hanging by the Union. The EU is not a superstate. It is a cooperation of its members. So whatever failings there are, are in effect, the collective failing of the member states. It is the unwillingness of some states to shoulder the burden together with more affected states that gives rise to current issues. It is the lack of cooperation and solidarity that gives rise to the situations we currently face. EU’s current legal framework in the respect of refugee problem is no product of an unknown force imposing its will, but it is product of the member states political will or rather lack of the will to cooperate fully and share the burden equally.
Do you think a quota system could be helpful? Or could there be any unintended consequences?
The quota system is probably the only solution that could help. However, how it is thought out and implemented will make all the difference. The quota system could be one true approach for a real burden-sharing approach. Nevertheless, creating and implementing such a system will surely be a challenge, as there are too many aspects to be considered.
For it to have a realistic chance to work the quotas should be set as a percentage from the overall Asylum claims rather than fix numbers for each state. It will need to develop a clear way of accepting the claims and distributing them to the member states. An effective information exchange will be vital for it. Reasonable time expectations on getting a decision as well as taking into account existence of private and family life in one of the member states should become paramount of any system designed to tackle the refugee problem. Also, any such system will have to take into the account the fact that countries with larger migrant population will inevitably face more claims from people with family connections in those countries and appropriate adjustments will need to be in place.
Part of a quota system will also have to be funding and training for such European countries that have lesser capability to deal with intake of refugees. As for unintended problems, those may arise in any case. As mentioned above, a well thought out quota system may just be able to tackle it. What are the current trends in this area of law? Do you have any predictions for the future?
Unfortunately, there are no signs that the overall political will of the EU member countries will change to a more collaborative approach in any time soon. We, sadly, witness rise of nationalism and anti-migrant feelings in most EU countries. Such conditions are hardly constrictive for the reforms that need to be done in the area.