by Teresa Alves, member of CEDU

▪

The migration crisis in European Union brings the necessity to reflect its own existence, implying the identification of its origin, i.e., the facts that may justify its emergence. This asks for a spatial and temporal localization and for a contextualization. The challenge in this article is to make a factual reflection to understand the essence of the crisis and consequently its implications in the human rights field as the EU and its Member States are bound to them.

The migration crisis remains and, from my point of view, is, on one hand, reflection of a common European policy in the asylum field, whose configuration always showed controversial aspects. It wasn’t ready, ab initio, to deal with a massive influx of applicants for international protection. On other hand, we are also talking about a crisis of solidarity because the Member States showed that they are not able to find a common approach, to respect the measures adopted by the institutions of the Union and to cooperate with the Member States more desired by the migrants and applicants of international protection. Article 67(2), of Treaty on the Functioning of the European Union (TFEU), binds the “common policy on asylum, immigration and external border control” to the “solidarity between Member States” and to be “fair towards third-country nationals” (stateless persons shall be treated as third-country nationals). Fulfilling this precept, Article 80 determines that this policy is governed by the solidarity principle and by the share of the responsibilities between Member States, including in the financial plan, and if necessary, the acts adopted by the EU in executing it policy “shall contain appropriate measures to give effect to this principle”.

The way that Member States and EU are managing the actual migratory context show their lack of preparation. However, the possibility of tens of thousands of refugees and immigrants to reach the coast of Europe was expected, “the official reports of Frontex and the United Nations agencies told it openly”[i].

The issue of asylum and migration policy in the EU is characterized by the almost total absence of strategic thinking[ii]. Except the Tampere conclusions in October 1999, the Heads of State or Government have not put forward any forward-looking plans on migration issues[iii].

The migration crisis shows that more than 15 years after the entry into force of the Amsterdam Treaty and the adoption of the Tampere conclusions, EU Member States have not yet reached their goals.  Immigration policy remains unbalanced, with the focus on border management and irregular immigration, coexisting with fragmentation and lack of cohesion between different policies and programs in this area. Consequently, xenophobic movements, with religious nature, anti-Muslim, nationalist movements within the European space, and terrorist groups acting inside and outside this space, immediately exploited these weaknesses. The ‘fear industry’, exacerbated by some media and by social network, has created in the public opinion an adverse reaction related with refugees, migrants, and even to the European Project”[iv].

From the point of view of citizens, EU initiatives on border management divide opinions. For some people, the EU is a “fortress”, which has decided to ignore its values and human rights. For others, the EU implements an open-door policy that undermines Europe’s security. In any situation, people are disappointed.

At this conjecture, previous crises coexist: the euro and the Greek crises have polarized the debates since 2008. The Arab Spring has transformed the regions neighboring the EU and has provoked a high level of instability in North Africa and the Middle East. The conflict in Syria remains unresolved. The situation in Ukraine remains unstable and unpredictable in the short term. Last but not least, the UK citizens’ decision to abandon the EU added another unprecedented turmoil, with effects that still to be defined[v].

This situation of ‘policrise’ is accompanied by several unprecedented divisions between EU Member States. The Euro crisis created the conditions for an opposition between the Northern States and the South as regards the solutions that should be implemented, and the migration crisis brought a division between the Western and Eastern European states. And if some Member States have shown commitment to granting international protection to Syrian citizens and other refugees, others, such as the Visegrad group of countries, have been reluctant to welcome refugees and applicants for international protection.

At EU level, the EU-Turkey Declaration, which aims to save lives putting at risk other life’s, and to speed up procedures for the readmission of irregular migrants, and that has transformed hotspots into detention facilities, confirms the view that the grounds for detention contained in EU derived legislation are as broad as the question whether they are a sufficient safeguard against arbitrary detention[vi]. What regulates the possibility of arrest is the need, and in this context has not been evaluated. In addition, it is a measure which raises serious questions as the effective guarantee of asylum, the principle of non refoulement and the best interests of the child[vii].

The European emergency resettlement mechanism, which is made up of so restricted eligibility criteria, not applied to all unaccompanied minors, is, in my point of view, another paradigmatic measure in terms of ensuring the best interests of the child. And the hostspot areas created for the temporary reception of migrants where they can present their request for international protection have also proved to be a source of violation of the minimum guarantees of the condign host. Again, the best interest of the child is not safeguarded and the right to the dignity of the human being (Article 1 of the Charter) is successively referred in the reports of the main non-governmental organizations. Such as the prohibition of torture and inhuman or degrading treatment or punishment (Article 4 of the Charter), the right to liberty and security (Article 6 of the Charter); respect for private and family life (Article 7 of the Charter); right of asylum and protection in case of removal, expulsion and extradition (Articles 18  and 19 of the Charter); the rights of the child (Article 24 of the Charter); the rights of the elderly and persons with disabilities (Articles 25 and 26 of the Charter); right to good administration (Article 41 of the Charter) and the right to an effective remedy and a fair trial (Article 47 of the Charter).

The primacy which Regulation 2016/1624 attributes to the European Coastguard and Coast Guard Agency in the areas of crisis points shows a more secure approach of the Common European Asylum System in the management of mixed flows and, therefore, less focused on the real needs of international protection to which Member States of the Union are bound. Finally, readmission operations involve similar risks and face similar challenges to forced returns to the country of origin. Therefore, a comprehensive return control system, including readmission operations, is an important safeguard to help preventing violations of fundamental rights and ensure fair treatment.

In the upheaval of this conjuncture, there are essentially two answers given by public opinion to the question: what has failed? Some people evoke an alleged slumber of the Union, which did nothing while watching an influx of deaths in the Mediterranean Sea, others the destitution of political will on the part of the leaders. In my point of view, they are not a answer but a symptom of three main factors: (i) the socio-economic structures of each Member State – migrants reach societies with very different histories and attitudes towards immigration and host; (ii) the 2008 financial crisis – which still affects all Member States, particularly in the southern part of the Union and in particular Greece – has led the view that welcoming more people would mean an increase in the inability to provide jobs and that the resources for full integration should be invested in Union citizens; (iii) the “crisis of agency, of trust in existing agencies, and, increasingly, of popular confidence in the virtues of democracy and in its power of attraction”[viii]. This crisis of agency, according to Alessandra Silveira, comes from the widespread discourse of democratic crisis of the EU, boosted by the national political parties, which, in this perspective, translates a national party crisis[ix]; for Vicenç Navarro, the crisis of trust in the agencies stems from the crisis of social democracy and Christian democracy, the two pillars that founded the EU[x]; and according to Beck, it would come from a crisis of thought, particularly economist, and from the emergence of a German Europe[xi].

“The survival of this ‘policrise’ situation, which easily falls into the temptation to make the European Union the ‘scapegoat’, may make us forget that it has also unique achievements to present”[xii]. The absence of a warlike climate between the Member States is the greatest of them, in a continent whose history is related to war. However, economic blindness persists, even more evident in the plan to adopt measures to solve the present migratory crisis, and which compromises these achievements. When we speak of economic blindness, “we refer to a policy that is excessively focused and absorbed by the mere fulfillment of economic austerity goals, unrelated to the need for a new European social contract, the need to adopt strategic policies and the primacy of fundamental rights that characterize the European Union”[xiii].

In conclusion, I reinforce that the measures adopted by the EU to resolve this migration crisis have also certain positive results if we consider the candidates eligible for replacement who have been transferred to the territory of other Member States, respecting their guarantees; in the relief of migration pressure in the first countries of entry (Italy and Greece) as a result of these transfers (although excessively slow, which is attributable to the Member States); and the Syrian refugees in Turkey who were dissuaded from embarking on the dangerous crossing of the Mediterranean Sea and have been reinstated in the Union – despite the European Union failure to resolve this situation and the behaviour of its Member States, EU offers more guarantees of protection than Turkey, which cannot be considered a safe third country nor a first country of asylum for Syrian refugees.  I therefore conclude that if all Member States acted in accordance with the measures adopted by the competent European institutions, and more particularly if they had fulfilled the European emergency resettlement mechanism the outcome of this migration crisis would be substantially better. However, I recognize their weakness and I also disagree with the way that the relocation mechanism is drafted: it mechanism is only applicable to third-country nationals that  have submitted an application for international protection in Italy or Greece, and that have nationalities whose  percentage of decisions to grant international protection adopted in the first instance is equal to or superior to 75% of the total number of such decisions.

 

[i] Cf. Yves PASCOUAU, “Do conflito ao equilíbrio: a Construção de uma Plataforma Comum para o Consenso Social e Político sobre Imigração”, in Melhorar as Respostas à Crise Migratória e de Refugiados na Europa, Lisboa, Fundação Calouste Gulbenkian, 2016, p. 24.

[ii] Cf. Yves PASCOUAU, “Do conflito ao equilíbrio:…”, op. cit., p. 25.

[iii] Cf. Yves PASCOUAU, “Do conflito ao equilíbrio:…”, op. cit., p. 25.

[iv] Cf. Artur Santos SILVA, “Prefácio”, in Melhorar as Respostas à Crise Migratória e de Refugiados na Europa, Lisboa, Fundação Calouste Gulbenkian, 2016, pp. 4-5.

[v] Cf. Yves PASCOUAU, “Do conflito ao equilíbrio: …”, op. cit., p. 17.

[vi]The deprivation of the right to liberty stipulated in Article 6 of the Charter of Fundamental Rights of the European Union (Charter) and Article 5 of the European Convention on Human Rights (ECHR) is permitted. However, detention constitutes a limited exception to the right of liberty and, as such, must respect the principles of necessity and proportionality expressed in Article 52 (1) of the Charter. Article 9 of the International Covenant on Civil and Political Rights highlights the requirements of legality, necessity and proportionality specifically in relation to any deprivation of liberty imposed in the context of immigration. And Article 15 of the Return Directive also states that detention should only be used when there are no other sufficient, but less coercive, measures available.

[vii] Incompatibility with Articles 78.º of the Treaty on the Functioning of the European Union, 1, 18 and 19 of the Charter and Article 4  of Protocol n.º4 Paragraph 4 of the European Convention on Human Rights which enshrines prohibitions of collective expulsion and repulsion in accordance with the principle of non refoulement, taking into account the clause of the Declaration which stipulates that all new irregular migrants traveling from Turkey to Greece, as of 20 March 2016, shall be returned to Turkey. Turkey is not a safe third country within the meaning of Article 38 of Directive 2013/32, because of a reservation made at the time of signature of the Geneva Convention, it is not bound to apply it in relation to events outside Europe. That is, Turkey only fully applies the Geneva Convention to people fleeing persecution and / or war in Europe. Finally, the agreement did not respect the procedure for the conclusion of international agreements under Article 218 TFEU, which makes it invalid.

[viii] Cf. Carlo BORDONI e Zygmunt BAUMAN, Estado de Crise, Lisboa, Relógio d’água, 2016, p.  40.

[ix] Cf. Alessandra SILVEIRA, “Teoría de la interconstitucionalidad: entre los procesos de constitucionalización y democratización de la UE”, version in Portuguese language kindly provided by the author.

[x] Cf. Vincenç NAVARRO, “Será a Europa de direita?”, in Courrier Internacional, n. º177, 2010.

[xi] Cf. Ulrich BECK, A Europa Alemã, de Maquiavel a “Merkievel”: Estratégias de poder na crise do euro, Lisboa, Edições70, 2014.

[xii] Cf. Alves, Maria Teresa, “Políticas migratórias…”, op. cit., pp. 188-189.

[xiii] Cf. Alves, Maria Teresa, “Políticas migratórias…”, op. cit., pp. 189.

 

 

Picture credits: Syrian refugee by Freedom House.