Role of the European Union in the Present Refugee Crisis

(Completed on 16.09.2015)

Introduction

Refugee regime has evolved with modern state systems and reflects changes taking place in international law and politics. The regime underwent a dramatic change during World War II to create a permanent framework to cope with the refugee problems through the United Nations High Commissioner for Refugees and the UN Convention Relation to the status of Refugees.[1]

Study in the subject has increased dramatically with increase in forced migration.[2]

The 1951 Convention Relating to the Status of Refugees has defined the term refugee to mean any person 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.[3]

According to the European Commission migrant, refers to a person who leaves from a country or region to settle in another, often in search of a better life.[4]

Syria is the primary refugee producing country for Europe today due to its close proximity. A legal and policy crisis thus emerges.

 

Causes of the Refugee crisis

Instability in the Middle East has been the rule rather than the exception in the 21st Century. Its geopolitical and strategic role arises out of the fact that it is an important trading hub and is rich in resources like crude oil. Most countries share a common history, religion or culture.

Displacement is not uncommon due to the large number of Palestinian refugees produced in the last six decades. This time the problem has emerged not in the Israel Palestinian region but in Syria and Iraq.

The primary cause of the instability in the region is the organization Islamic State in Iraq and Syria commonly known as ISIS[5].  Earlier it was known as ISI which was a terrorist group funded by the Sunni dominated Saudi Arabia against the Shia dominated Iran. Nouri al-Maliki, the Shia prime Minister of Iraq discriminated and oppressed the Sunnis and his government is corrupt and inefficient. This lead to small scale Sunni rebellion. Its Army was is not loyal to the government. The ISIS gained control over some parts of Iraq and took advantage of the Arab Spring in 2010 which completely altered the power structure in the Middle East. ISIS and other armed groups joined the civil war is Syria and expanded their territorial control. In 2014 they declared a caliphate in the area the group controls from Aleppo in Syria to the province of Diyala in Iraq.

The rule established by them in the territories they governed was so harsh that even Saudi Arabia and the Al Qaieda were shocked and withdrew their support. They have committed massacres against civilians, suicide bombings, public executions, raids, abuse of women and children, execution of foreign nationals and have created an atmosphere of absolute terror and fear of death.

Nations have come together to form an Anti ISIS coalition and several nations have carried out activities of military intervention. The US has conducted several airstrikes as well. However, no country has been successful in dislodging the ISIS stronghold. Meanwhile the condition of ordinaly citizen worsens in the region. The ISIS is intolerant toward Shia Muslims, non-Muslims and individuals with dissenting opinion. All opposition is usually met with death. Therefore, the only way for individuals fearing persecution on the basis of their religion or point of view, it is to seek asylum in s neighbouring country.

The refugees board rickety boats and set sail for a country like Greece or Malta but often they hope to get picked up along the way by a passing ship.

Location of the Effect: Europe

The European Union was established by the Treaty of Maastricht. It was setup to provide a vessel for supplementary policies and forms of cooperation. It is considered to be a layerd organization comprising of the European Communities, CFSP and PJCCM.

The Treaty on the European Union and the European Union itself was created through a hard fought-out compromised between the proponents of the community method and proponents of traditional inter-state co-operation.[6] In a community method, governance in specific spheres is carried out by supranational institutions. In an inter-state cooperation model, initiative remains with the Member states and decisions are taken by unanimity. Although member states were wary of and resisted the former model due to fears that it would weaken state mechanisms in those spheres, the EU has structurally developed into more than mere cooperation.

The twenty eight members of European Union comprise of France, Italy, Germany, Belgium, Spain, Portugal, United Kingdom, Greece and Denmark among others. All members of the European Union are also members of the Council of Europe which is the leading human rights organization in the region.

 

European Laws on refugees

The law applicable to refugees in Europe would be conventions of the Council of Europe, laws of the European Union and treaties of the United Nations where the member states are signatories.

Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Also, 1951 Convention relating to the Status of Refugees and its 1967 Optional Protocol relating to the Status of Refugees cover several aspects of rights due to refugees.

Large-scale displacement as the result of armed conflicts found that the 1951 Convention definition did not go far enough in addressing the protection needs of their populations. [7]The 1951 Convention does not define how States Parties are to determine whether an individual meets the definition of a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each State Party to develop. This has resulted in disparities among different States as governments craft asylum laws based on their different resources, national security concerns, and histories with forced migration movements.[8]

EU Community law belongs to international law and is partly embodied in inter-state treaties but may often contain elements which are absent even in advanced international law. The focus is on common internal law among the Member States. Article 78 of the treaty on the functioning of the European Union requires EU member states to create a common policy on asylum, subsidiary protection and temporary protection to any third-country national requiring international protection. It also directs that the principle of non refoulement would be followed. It also directs states to create mechanism for determining which member state would be applicable for hearing an application. Article 78(3) envisages in an emergency situation where sudden inflow of nationals of third countries, and empowers the Council the Council, to adopt provisional measures for the benefit of the Member State(s) concerned after consulting the European Parliament.

Standards for the reception of applicants for international protection were laid down in 2013 by a directive of the European Parliament. It states that an applicant for international protection would be issued a document within three days of application certifying his/her status as an applicant[9]. Detention must be justified for every individual case and should not be applied as a general rule. It should be used only when less coercive measures do not work. It is allowed only under certain enumerated circumstances[10]. Detained applicants would also have access to free legal aid and speedy judicial review.

The Dublin Regulation laid down criteria for determining which Member state would be responsible. The relevant article to consider in the present situation is Article 13 which states that in case of irregular entry to the territory of a Member State by land or sea, the Member State thus entered shall be responsible for examining the application for international protection. That responsibility shall cease 12 months after the date on which the irregular border crossing took place. Article 3, however provides that where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.

 

Compelling states to bear responsibility

Asylum applicants from Syria rose to 122 thousand in the EU Member states in 2014, which equated to 20 % of the total from all non-member countries[11]. Thus, a need emerged to find mechanisms by which states could be held legally responsible to process the refugees. The Dublin regulation fixes primary responsibility on nations like Greece, Italy and Malta which receive most of the Syrian refugees because the State through which the third country national first enters Europe is considered the State responsible for adjudicating that national’s asylum claim.[12] Many of these asylum seekers are discovered in other nations like Germany and have to be returned to Greece to have their claims adjudicated.

Human rights organizations including Amnesty International have reported on unsanitary, degrading and overcrowded conditions in Greek detention Centres. There were also instances where the applicants were detained for prolonged periods. Additionally, asylum-seekers have claimed that they did not have access to a UNHCR representative or information about how to apply for asylum while in detention.[13]

In M.S.S. v. Belgium and Greece[14], The Court found that Greece had violated the applicant’s right to an effective remedy and that his detention conditions were degrading. It also found that Greece did not have an effective asylum system and any asylum seeker transferred to Greece under the Dublin Regulation risked grave human rights violation.

Most states of the European Union have either accepted or ratified 1951 Convention relating to the Status of Refugees and the 1967 Optional protocol[15].Non-refoulement is a basic tenant of refugee law and is also recognized by the 1951 Convention. States are prohibited from returning a refugee to the frontiers of territories where his or her life and freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. [16] This a person must not be sent back to persecution. This principle is binding on all Member States.

In R (on the application of) ABC (a minor) (Afghanistan) v. Secretary of State for the Home Department [17] the claimant was a sixteen year old boy who escaped an abusive family and applied for asylum in UK. He was not granted permission because he was involved in his half brother’s death. The child’s welfare in such situation must be taken into account. Eact case, must be decided individually in light of the unique facts associated with it.

 

Europe’s Response

 

Most European governments were reacting with indifference to the biggest refugee crisis facing our continent in over two decades. Syrian refugees are often pushed back, while others, having arrived in Europe, ended up in detention. Moreover, as the conflict in Syria approaches its fifth year, in many European countries recognised Syrian refugees are still left to fend for themselves, without adequate measures to facilitate their integration, despite the obviously long-term character of their forced displacement.[18]

Countries are now struggling to address the basic needs of Syrian refugees. Problems include overcrowded schools and health facilities, the strain on water, sanitation and electricity infrastructures, and the lack of adequate housing. Syrians in Jordan and Turkey live outside the refugee camps, many of them being forced by extreme poverty to resort to desperate coping strategies, including begging or exploitative work.

Hungary put up a fence along the Serbian border. However, people would still cross the border by using clothes to blunt the barbed wire. Hungary was then forced to allow them to cross the fence at one point in order to avoid them crossing along its entire length.

Denmark said that it had already accepted its fair share of asylum seekers and would not take part in a proposal by the EU Commission to take a share of another 160,000 refugees.

 

Analysis

Large scale migration is an old concept but the crisis today is unprecedented. The Bible provides a compelling literary account of large scale migration of the ancient Israelites from Egypt to Canaan in the Exodus. Jews migrated before and during the Second World War to escape Nazi oppression. In fact they even crossed the Atlantic Ocean. It resulted in a crisis involving a large number for nation including the United States, United Kingdom and even Australia. The Israel-Palestine conflict also resulted in a massive displacement of Palestinian with six million registered refugees.[19] However, the crisis today is characteristically dissimilar from anything before it. The total number of refugees exceeded four million this year.[20]

Today, there are many binding international instruments which protect the rights of the refugees. The EU in particular is an area where humanitarian laws are well developed. There exist common standards for processing refugees and even provisions for sharing responsibility when dealing with a large number of refugees. Claims can be adjudicated at the domestic level and also at the EU level through the robust European Court of Human Rights. Also, several developed and highly industrialised nations exist in the zone. As a general rule, all EU nations share a cordial relationship with each other.

It is very important to call the refugees from Syria by the right name. They are refugees not migrants. The legal implications of the two terms are different. EU member states have legal obligations towards refugees which are not extended to migrants. The rights of refugees are also protected under international legal framework but migrants can only resort to municipal laws. Migrants may be deported to their home countries if they have not arrived with proper documents like visas and permits. Their basic human right of subsistence is also not protected and they cannot avail of state services in place to provide basic living conditions to refugees.

Policy on refugees is determined by state practices, international instruments and regional organizations. However, the decisions of a country must take into account the will of the people living in it. Public opinion is relevant in policy decisions because public pressures may coerce governments to change their stance. Governments of countries are more likely to look at the present crisis with distaste and lament at the infrastructural pressures an influx of refugees would create. However, Individuals and groups within a country are more likely to conclude that the present situation poses a humanitarian crisis and encourage the intake of refugees. Protesters gathered in capitals of Denmark and the UK to protest against their government’s position on the refugee crisis, as other demonstrations were planned in Germany, Spain, France and elsewhere. Danish police estimated that 30,000 people had gathered outside the Danish parliament building in Copenhagen on Saturday, shouting “Refugees are welcome” making clear that the government is wrong in their stance towards refugees.[21]However, the tide may soon turn and the very supporters of liberal refugee norms may begin demanding a cap on the refugee intake due to xenophobia or a fear that national resources and services would not be able to bear them.

Jordan hosts more than 630,000 Syrian refugees, on top of Iraqi and Palestinian ones, Lebanon hosts 1,172, 753 refugees, while Turkey houses 1,805,255 refugees[22]. Turkey became the world’s largest recipient of refugees (including those from Iraq) in 2014. Turkey’s is being deeply affected too, in spite of having the largest economy in the region and a strong state tradition. The ILO has found that unemployment has significantly increased in Jordan since Syrian refugees began to arrive in 2011[23]. The economies of Europe like Germany would be able to sustain refugees much better but have taken in a much smaller number of refugees.

Human Rights in the 21st Century have to be seen in the international global context and human rights instruments in themselves will not prove the ultimate panacea but provide a minimum standard which will become the norm and rather than the exception.[24] Integration policies should be overarching, covering human rights sensitisation

 

Conclusion

It is imperative for states to be sensitive towards the need of the hour. Non-entry policies should be done away with because they are counterproductive. Rather than reducing the number of immigrants, they increase irregular migration and encourage human smuggling.

Individuals found in inland states should not be returned to the countries which were their first entry point into the EU for processing. This is because the asylum system in Greece, Italy and other Mediterranean counties are already paralyzed. They are unable to fulfil even bare minimum requirements of refugees because of the large numbers. Therefore, they should be processed in those nations where they are discovered. Particularly, vulnerable persons like pregnant women should not be sent back for processing. The directives of the applicable international instruments must be followed in asylum detention centres.

The only sustainable solution is stability in the region. It is absolutely impossible for Europe to accommodate the entire number of people which can be expected to be displaced if this crisis continues for long. In fact, several members who are asylum seekers may never become citizens of any European Country. On the other hand public opinion does not allow nations to turn a blind eye to the problem or turn back boats full of Syrians. They are under pressure to accommodate refugees. It would not be viable to support their long term existence in Europe due to a lack of infrastructure and resources. Thus, the refugee crisis makes the EU more invested in in bringing peace to the region through humanitarian intervention if necessary.

 

[1] Laura Barlett, Global Governance and the Evolution of the International Refugee Regime, 14 International Journal of Refugee law 238(2011).

[2] Richard Black, Fifty years of refugee studies: From theory to policy, 35 International Migration Review 57 (2001).

[3] Article 1(A), available at http://www.unhcr.org/3b66c2aa10.html.

[4]Immigration Glossary, available at http://ec.europa.eu/immigration/glossary_en

[5] Also knows as Islamic State and ISIL

[6] Kapteyn & VerLoren van Themmaat, The Law of the European Union and the European Communities 53 (4th ed. 2006).

[7] Asylum and the rights of refugees International Justice Resource Centre available at  http://www.ijrcenter.org/refugee-law/.

 

[8] Asylum and the rights of refugees International Justice Resource Centre available at http://www.ijrcenter.org/refugee-law/.

[9] Article 6, Directive 2013/33/EU of the European Parliament and of the Council.

[10] Article 8 (It also states that grounds for detention must be laid down by national law).

[11]  Asylum Statistics available at http://ec.europa.eu/eurostat/statistics-explained/index.php/asylum_statistics.

[12] Art 10(1).

[13] Amnesty International Annual Report 2012-Greece available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=country&category=&publisher=AMNESTY&type=&coi=GRC&rid=&docid=4fbe393927&skip=0.

[14] Application No. 30696/09, ECHR 2011.

[16]  Art. 33(1) , 1951 Convention relating to the Status of Refugees

[17] [2011] EWHC 2937 (Admin)

[18] http://www.coe.int/en/web/commissioner/-/syrian-refugees-reset-needed-in-europe-s-approach

[19] http://www.unrwa.org/palestine-refugees

[20] http://www.unhcr.org/559d67d46.html

[21]http://www.aljazeera.com/news/2015/09/thousands-part-pro-migrant-rallies-europe-150912133235850.html (it is difficult to assess to what extent the protesters reflect the sentiments of Britain as a whole).

[22] http://www.unhcr.org/559d67d46.html.

[23] The Impact of Syrian refugee crisis.

[24] Rebecca m.m. Wallace and  Olga Martin-Ortega International Law 263  (6th ed. 2009).

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