REFUGEES: A CRISIS OF PROTECTION IN EUROPE (Siobhán Mullally)
The crisis in Europe is more properly understood as a crisis of protection and of policy. It is fundamentally a crisis of human rights. Core protections provided to refugees and migrants by European and international law, including the right to seek and to enjoy asylum from persecution and protection against refoulement, have come under threat. Faced with forced displacement of almost five million Syrian refugees, the focus of responses has continued to be on deterrence, deflection and return. As Wendy Brown has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states continue to exhibit a passion for wall building. In the European Union, the ‘stark physicalism’ of walls and fences have been supplemented by the launching of a military operation, EUNAVFOR-Med, which includes among its stated aims, the prevention of loss of life at sea, preventing ‘illegal migration flows’ and disruption of the ‘business model of smugglers’.
The business model of smugglers, however, is closely linked to the limited accessibility of pathways to regular migration, and the absence of a comprehensive resettlement response to the humanitarian crisis triggered by millions of people forcibly displaced by conflict. The reluctance to issue humanitarian visas, or to expand the scope of family reunification, combined with continued use of carrier sanctions underpins the very business model that the EUNAVFOR-Med operation seeks to disrupt. Within the context of the EU’s Common European Asylum System, the uneven sharing of responsibility for protection among Member States, and divergence in the protection afforded to refugees and asylum seekers, remain to be addressed. Against this background, core principles underpinning the EU’s foundational treaties – fair sharing of responsibility and solidarity – are not being met.
This crisis raises questions as to the limits and potential of human rights norms, when invoked by migrants and refugees. As such, it also raise questions as to the current state of play of both the theory and practice of international law, and the conflicting interests that underpin its shifting frontiers. These conflicts include legal reforms that reflect, as Brown notes, simultaneous opening and blocking, ‘universalization combined with exclusion and stratification’ – an apt description of the politics of the 2016 EU-Turkey agreement.
Protection against refoulement
The Agreement – including its very legal status as an ‘Agreement’ – is now the subject of several challenges that raise questions as to its compatibility with the prohibition of refoulement. Recent judgments of the European Court of Human Rights have highlighted the positive procedural obligations on states arising from Article 4, Protocol no.4 to the Convention. In Klaifia and Others v Italy – (a case now pending before the Grand Chamber) – the Court held, by five votes to two, that the applicants had been subjected to a collective expulsion. The ‘mere introduction of an identification procedure’ was not considered sufficient in itself to rule out the existence of a collective expulsion. A number of factors led the Court to the conclusion that the impugned expulsion was collective in nature: There was no reference to the personal situation of applicants in the refusal-of-entry orders; there was no evidence that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; and perhaps, most tellingly, a large number of Tunisian nationals – the same nationality as the applicants – received the refusal-of-entry orders around the same time. Khalifia followed on from earlier judgments by the Court on collective expulsions, Hirsi Jamaa and Others v. Italy and Sharifi and Others v. Italy and Greece, in which the absence of ‘sufficient guarantees’ demonstrating that the personal circumstances of each of the migrants concerned had been ‘genuinely and individually taken into account’ was critical.
These judgments of the Court weigh heavily on the legal issues arising under the implementation of the EU-Turkey agreement. The judgment of the Court in Khalifia is particularly instructive, given its references to ‘exceptional waves of immigration’, and its acknowledgment of the many duties assumed by the Italian authorities, including rescue at sea, and provision for the health and accommodation of migrants on arrival on the island of Lampedusa. In a particularly important statement, the Court noted, however, that those factors cannot exempt the State from its obligation to guarantee conditions that are ‘compatible with respect for human dignity to all individuals’.
The collective expulsion cases reveal a willingness on the part of states to test the limits of legality, including of the safe third country concept. In Khlaifia, Judge Keller, noted that the preliminary investigations judge of Palermo had invoked the state of necessity (stato di necessità) to justify the ‘immediate transfers’ of migrants. This argument, and related arguments concerning international law and state responsibility in times of ‘distress’, were rejected by Judge Keller.
The rush to conclude the Agreement is likely to come under continuing scrutiny, particularly given the trust placed in the Greek asylum determination procedures and capacity for reception. At the time its conclusion, the Committee of Ministers of the Council of Europe had not yet closed its supervision of execution of the judgment in M.S.S. v. Belgium and Greece. Of particular note in the Court’s judgment, is the Concurring Opinion of Judge Rozakis, in which he took the opportunity to highlight the deficiencies of EU immigration policy, including the Dublin II Regulation (as it then was). The Regulation, he noted, did not reflect the present realities, or ‘do justice to the disproportionate burden that falls to the Greek immigration authorities.’ His comments were prescient, and have only increased in relevance subsequently. There was, he said, ‘an urgent need for a comprehensive reconsideration of the existing European legal regime.’ Despite this urgency, however, this comprehensive reconsideration has yet to be realised. Proposals for a fairer process of allocation of responsibility continue to be contested. Against the background of a ‘crisis situation in the Mediterranean’, even the limited ‘temporary and exceptional’ relocation decision adopted by the European Council in 2015 is facing legal challenges by Hungary and Slovakia.
In a carefully worded assessment of the legal considerations of returning asylum seekers and refugees from Greece to Turkey, UNHCR cautions that ‘sufficient protection’ must be ensured before the safe third country and first country of asylum concepts can be applied. The requirement of ‘sufficient protection’ is stated in Article 35 of the Recast Asylum Procedures Directive, and is considered by UNHCR to require more than a guarantee against refoulement.
The legislative reforms and the legal underpinning of the Agreement itself, however, was challenged by a decision of a Greek appeals tribunal, sitting in Lesbos, refusing to recognise Turkey as a safe third country. The tribunal decision found that the temporary protection afforded by Turkey to the appellant, as a Syrian citizen, ‘does not offer him rights equivalent to those required by the Geneva convention.’ The decision echoes concerns expressed with regard to the level of protection afforded in Turkey, and brings into question the EU’s presumptions as to the legality of its return and resettlement trade-off.
The position of children on the move, and in particular, unaccompanied minors, in Europe has attracted particular concern. In March 2016, the Council of Europe Secretary General wrote to all 47 Member States of the Council of Europe setting out a list of proposals for immediate action to ensure better protection of migrant and asylum seeking children. The letter cites the findings of the Council of Europe Group of Experts on Action against Trafficking (GRETA) that significant gaps in the protection of unaccompanied minors persist in most Council of Europe Member States, with often tragic consequences.
The phenomenon of ‘missing migrant children’ is not new. However, the conceptual and practical challenges posed by increasing numbers of migrant children in Europe has brought the limits of state responses into sharp focus. Against this background, the question of how child and adolescent migrants can translate the principles of international law into meaningful human rights protections’ remains open.
Core norms of the Law of the Sea – obligations of search and rescue, of assisting persons in distress at sea and delivering survivors to a place of safety – have gained prominence in Europe’s crisis of protection. There have been significant failures of the maritime legal framework, including disputes as to the proper demarcation of Search and Rescue zones, and significant loss of life – tragically captured in Dutch MEP, Tineke Strike’s report on the ‘left-to-die’ boat incident. While the technical norms of the Law of the Sea have sometimes provided a comforting tool to allay fears of further dereliction of duty, moving beyond rescue has proven more difficult.
The EU-Turkey agreement marks a process of de-juridification, an enactment of limits. While legal challenges and the claiming of rights will persist, the fundamental reforms required to ensure safe passage to those seeking protection, and the expansion of pathways to lawful migration, remain elusive.
 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA), Fifth General Report on GRETA’s Activities, (2016)