How the EU is shifting its responsibility for refugees

by Fabiane Baxewanos¹

The central role of the EU

The EU has long played a decisive role in the area of European refugee policy. In both a legal and factual sense, the EU has gained increasing decision-making powers in this area of competence. Despite the present climate of nationalist rhetoric: Europe’s current refugee policy is largely Brussels-made.

Yet this does not mean that member states have been deprived of their powers. On the contrary: we are currently witnessing efforts throughout Europe to take decisions exclusively at the national level, though this often contradicts existing EU law and therefore has – at least legally speaking – limited prospects of success. Increasing Europeanisation has created a political and legal framework that directs member states’ policies in certain ways. European refugee policy offers a forum that promotes certain national discourses and pushes others to the background. And despite the involvement of member states via the Council of the EU, it enjoys a significant degree of autonomy.

In certain areas, such as the rights of refugees during the asylum procedure, this shift in competence to the EU level has thus far been a welcome development. In recent years, EU reforms have improved national practices and raised standards in many member states. The downside is that this is neither a consistent nor a sustainable process.

First of all, European institutions are politically divided over the issue of refugee policy. The EU Commission, the EU Parliament and the Council of the EU occupy very different positions on various important issues. They are often internally divided, too, as demonstrated by the current discussion on humanitarian visas for refugees: while part of the European Parliament takes the position that EU member states are required, under European law, to issue humanitarian visas in particular situations, the Commission and the Council are vehemently opposed to this view. They argue that the relevant EU law provision is restricted to a small number of exceptional cases; otherwise, the door would be open to an unlimited number of refugees.

Furthermore, refugee policy is, by its very nature, a matter of negotiation. Both national and EU politicians face electoral pressures, and increasing xenophobic tendencies in many member states are threatening once-liberal views at the EU level too. Many argue that popular resistance to a more open refugee policy threatens the very integrity of the EU and that, as such, it is vital to take greater account of national concerns, particularly in Eastern European countries. As a result of all this, the current reform of the European asylum system is much less focused on refugee protection than the last major reform of 2013. The problem is that because the Commission is still clinging fast to the idea of harmonised standards, it is attempting to achieve these standards at the cost of significantly lowering them. Better to harmonise at the level of the lowest common denominator than to risk fragmentation: this appears to be the rationale.

Ultimately, the creation of harmonised refugee law standards within the EU has led to the EU’s greater fortification against the outside world. The precondition for what is now referred to as the “area of freedom, security and justice” – that is, a Europe without internal borders and with harmonised standards – was the sealing off of the bloc from the outside world. To this end, it not only fortified its common external border, but also adopted deterrence measures outside of European territory. Today, people are now often stopped outside the external border before they can enter the EU and thus acquire rights. In addition to the reintroduction of controls at national borders by several member states, we are seeing an increased militarisation of the external border (“Fortress Europe”), with the stated goal of reducing the overall number of arrivals. Official discussions often overlook the fact that refugees are thereby deprived of the opportunity to exercise their right to asylum.

In this process of internal regulation and external sealing off, the EU has become more central than ever. First, it is proposed that EU asylum law will be directly applicable in member states in the future. This is to be achieved by adopting the majority of future EU asylum rules in the form of regulations and not as directives, as has been the usual practice to date. Unlike directives, regulations do not need to be transposed into national law, but are directly applicable. Second, the EU Commission has been the driving force behind the greater involvement of non-EU states, particularly in North Africa and the Middle East, and has extended the mandate of the EU’s external border agency Frontex in this regard. Since the recast of its founding regulation, the agency has had the explicit competence to cooperate with third countries. This trend of a so-called “externalisation” of European border protection is outlined briefly in the following section.

“Fortress Europe” and its effects

Perhaps the most striking trend of European refugee policy in recent years is the emphasis of its so-called “external dimension”. This refers primarily to the shifting of migration controls to non-EU countries. This is intended to ensure that refugees are intercepted not just when they reach the European border, but actually long before it. This takes the form of control operations on the high seas, patrols in Libyan coastal waters, exit controls, or checks at international airports. The EU-Turkey “agreement” of March 2016 and current negotiations on an agreement with Libya are concrete examples. What human rights organisations call a violation of international refugee law is presented as necessary by the European Commission: such agreements are meant to provide some “breathing space” to deal with those who have already arrived. The cynicism of such statements in the face of blatant abuses at the gates of Europe appears to go unnoticed.

For many, the result of this deterrence policy is that the flight ends before it has really begun. If people still manage to reach EU territory, there are a number of existing legal tools that allow them to be returned to their countries of origin or transit. This is possible due to the concept of “safe third countries”, which declares certain countries to be generally safe for refugees. Whether the required minimum standards are met in practice is often not sufficiently examined.

At the same time, there is wilful ignorance of the fact that increasingly closed and militarised borders and the lack of legal migration routes are producing irregular migration in the first place. As long as wars and persecution exist, refugees will seek protection in Europe. It is in our power to allow them access to legal pathways or to continue driving them onto ever more dangerous routes. Instead of declaring human smugglers and, most recently, NGOs as major culprits, legal immigration options such as humanitarian visas, family reunification or resettlement programmes should be stepped up. This is the easiest way to stem irregular migration. If we continue to ignore this, the consequences will remain the same: people drowning in the Mediterranean, shipwrecks portrayed as “tragedies”, refugees frozen to death in refrigerated trucks, pervasive sexual violence on the routes through North Africa and across the Balkans. All this can be prevented: we merely need the political will to implement what is already legally possible.

Outlook: Political strategies

Currently, a great deal of hope rests on Europe’s courts. In the face of political blockades, many call upon judges to act as the last line of defence for refugee law and the rule of law in the EU. And indeed, some of the most serious instances of human rights abuses have been reversed – at least for the time being – by courts: Italy’s push-backs to Libya on the high seas or transfers to Greece without individual guarantees are just two recent examples.

Yet our trust in the law must not be blind: law also operates in a political context, and judges do not enjoy limitless discretion. If political realities move too far away from existing legal provisions, the law will not remain the same for long. Ordinary laws can be reformed; constitutional or human rights law can be reinterpreted. As such, the formulation of a political strategy remains a key concern.

As a final thought, I therefore would like to propose five key questions that we, as human rights actors, should answer:

1. Alliances: What alliances do we need to form? How can we succeed in stepping outside our own bubble? How should we work with EU institutions; how should we work with state actors? Where are our red lines?
2. Time frame: How do we define our goals; are they short or long term? Is our focus on celebrating small achievements, or are we developing strategies for more fundamental change? How can we ensure constant reflection, so that we evaluate our goals and our ways of achieving them on a regular basis?
3. Anti-crisis communication: How can we change existing narratives? How can we deconstruct concepts such as “crisis”, “emergency”, “disaster”, “influx”, “floods” and “waves”, which are more reminiscent of natural disasters than of refugee movements? How can we convey that crises and illegality are manufactured constructs?
4. “Us” and “them”: How can we avoid these arbitrary, binary boundaries? How can we build bridges? How can our commonalities be reinforced in everyday life?
5. Humanitarianism vs. rights discourse: Do we see refugees as victims or as actors with agency? How do we reflect on our position of power in our role as aid workers? How can we exercise this power carefully, without falling into paternalism, expectations or even demands of gratitude?

¹ This post reflects the author’s personal views, not necessarily those of the United Nations or UNHCR.