The European Union is facing an unprecedented refugee crisis. Only in 2015, 168 000 irregular migrants reached its shore, and over 1 million are still on their way. Beyond all normative judgements, this crisis can be understood as a mismatch between EU migration and asylum policy and the international post-cold war context, resulting in a mass influx of undocumented migrants.
From 1951…to 1991 onwards
The Geneva convention is the centrepiece of international refugee regime, as well as the Common European Asylum System (CESA) according to the article 78 TFUE (Hailbronner and Thym 2016, 1028). Therefore, the convention is supposed to regulate the behaviour of all EU states regarding refugees. However, the breakdown of the Soviet Union undermined this regime. It transformed the nature of the refugee problem, and eventually paved the way to the current refugee crisis in Europe.
The breakdown of the USSR has impacted the refugee regime in two ways which are closely intertwined. First, the nature of world politics changed. Notwithstanding famous exceptions such as the Vietnam war or Korean one, the Cold War was an extended period of peace because of the stabilizing effect of the division of the globe between between the West and the USSR. This changed with the collapse of the latter. The world was brought back to a state equivalent to the one of the inter-war period, characterized by the breakdown of states, the formation of new states and a persecution based on ethnic, national and religious grounds (Haddad 2008, 166). As a result, the nature and the amount of asylum seekers significantly changed from individual flows – fleeing political persecution – to mass flows – fleeing for diverse reasons. Based on these observations, one can conclude that the scope of the Geneva convention always was problematic for being too narrow, but it is only from 1991 it became evident.
Second, with this sharp increase in asylum application, the support of EU member states for an international refugee regime wavered. To give an example, in Europe, the number of applications rose from 20 000 in 1976 to 450 000 in 1990. Soon, immigration became a concern, and asylum seekers were increasingly blamed for skyrocketing crime rates, fundamentalist terrorism and mass unemployment (Castles and Miller 2003, 102-103). EU member states have become more and more inclined to pre-identify the refugees among asylum seekers, and to only let the former enter their territory (El-Enany 2007, 6), but this logic was largely undermined by their restrictive policies concerning immigration.
The inadequacy of the refugee status
The current definition of the term refugee, which dates back from 1951, does not correspond with the realities of the refugee problem. The convention defined a refugee as: ‘a third country national who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’ (UNHCR 2010, 14). According to such a definition, evidence of persecution is not sufficient for establishing a refugee status; the threat to one’s life must be based on his or her race, religion, nationality, membership of a social group, or political opinion. The consequences of such a wording are threefold. First, the term persecution is quite vague, and it is difficult to determine what it includes. Second, anyone who is persecuted on other basis that the ones abovementioned is not eligible for international protection. Civil wars are the perfect embodiment of such kind of persecutions. Third, this definition leaves out all the asylum seekers who fled their country in circumstances where their lives are endangered for other reasons than persecution. For instance, the victims of a natural disaster or famine (Schacknove 1985, 276).
The two first issues were dealt with by the EU through the Asylum Qualification Directive 2011/95. On the one hand, the directive recognized the right for ‘subsidiary protection’ for persons who do not qualify as refugees. On the other hand, it also sets up clearer criteria for what accounts for ‘acts of persecutions’ and ‘reasons for persecutions’ (Hailbronner and Thym 2016). Although these modifications pale in comparison with OAU’s ones (OAU 1969), they are still greatly expanding the scope of international protection for certain asylum seekers.
The inconsistency of EU member states’ asylum policies
The policies of the EU member states are contradictory in essence. With the rise of applications from asylum seekers that do not fit with EU member state definition of a refugee, the latter have become keen on developing an other approach of asylum seekers management in which only the ones pre-identified as refugees should be able to set foot in the EU. In order to run smoothly, such a management style must rely on two arms: preventing asylum seekers to come to EU before they are vetted, and to open legal access path to those who are identified as refugees.
The first branch of this management style has been a practice known as ‘policing at a distance’. That is, the externalization of the EU borders management outside of the EU through visa policy and carrier sanctions. The visa policy enables EU countries choose who is welcome and who is not welcome in the EU by granting or not a visa (Bigo and Guild 2005, 235-239). Yet, as it is, visas are mandatory for the nationals of all North African and Middle East countries. What is more, carrier sanctions policy complements the visa policy by ensuring that the travellers that do not possess a visa cannot fly to the EU. The airlines companies that fail to comply are sanctioned. Again, such a practice is problematic because for instance during wartime, asylum seekers are unable to obtain passports or visas (Guild et al. 2015, 4-6).
The second branch is supposed to ensure a safe passage to those who have been identified as refugees. However, this elements has been lacking in the EU member states’ asylum policies. For instance, resettlement schemes set up by the UNHCR seem to be one of the solutions for ensuring legal and controlled access to the EU, but only 18 833 refugees were resettled in 2015 (UNHCR 2016, 41). In order words, the legal access to the EU is very difficult, and asylum seekers are forced onto perilous routes if they want to apply for asylum.
A European made crisis
Notwithstanding factors such as the Syrian civilian war or the 2008 financial crisis, the European crisis is the result of the inadequacy of current refugee definition, and the inconsistency of EU member states’ policies. First, the current definition is too restrictive, and does not englobes all the reasons for which people would flee to save their lives. Second, because of this gap between refugee law and reality, EU member states are confronted to an important number of applications filled by asylum seekers who do not fit within the official definition of the term ‘refugee’. In order to tackle this situation, the member states try to circumvent the number of asylum seekers setting foot in the EU through various means.
The result is that both refugees and unrecognized asylum seekers are forced into one single migration route with the other migrants: irregular migration through unauthorized and/or undocumented movements (Koser 2007, 88). To conclude, although this cannot account for all the irregular migration in direction of Europe, it has contributed to the phenomenon.
Marin Capelle is a student at the Institut d’études européennes
Bigo, D., Guild, E., 2005. ‘Policing at a Distance: Schengen Visa Policies’. In Controlling Frontiers: Free Movement Into and Within Europe, edited by D. Bigo and E. Guild. London: Ashgate, 233-263.
Castles, S., Miller, M. J., 2003. The Age of Migration: International Population Movements in the Modern World. Basingstoke: Palgrave Macmillan.
El-Nany, N., 2007. ‘Who is the New European Refugee?’, LSE Law, Society, and Economy Working Paper 19/2007.
Guild, E., Costello, C., Garlick, M., Moreno-Lax, V., 2015. ‘Enhancing the Common European Asylum System and Alternatives to Dublin’, Liberty and Security in Europe CEPS Paper.
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OAU, 1969. OAU Convention Governing the Specific Aspects of Refugees Problems in Africa. Geneva: UNHCR
Shacknove, A.E., 1985. ‘Who Is a Refugee’, Ethics 95, 274-284.
Hailbronner, K., Thym, D., EU Immigration and Asylum Law: A Commentary. Munich: Verlag C. H. Beck oHG.
UNHCR, 2010. Convention and Protocol relating to the Status of Refugees. Geneva: UNHCR.
UNHCR, 2016. UNHCR Projected: Global Resettlement Needs. Geneva: UNHCR.