This image would now most likely take you to the border between the Rwanda and the DRC, between Afghanistan and Pakistan, between Armenia and Chechnya. Yet it was a similar scene in Europe the immediate aftermath of World War II, when the refugee crisis across our continent led to the rights of refugees to be inscribed in international law.
It is over 50 years since the 1951 Refugee Convention (and its subsequent Protocol) first set standards for international protection. Today, with immigration rendered de-facto illegal by strict visa regimes the rich mans gate is closed. Faced with the stark choice of illegality or asylum, it is unsurprising that desperate people are choosing the back door, with the Convention seen as offering a possible safe-haven for all migrants. What is surprising is that, whilst acknowledged, the connection between restricted immigration and abuse of asylum has yet to find a coherent political solution other than one which breeds mistrust in migrant and host populations as well as a questioning of the legal regime itself.
This article will look at the extent to which the Refugee Convention still applies to the European context and through that analysis expose some of the contradictions in thinking on asylum and immigration as Member States say one thing and do another. We will look at how governments confuse the issue of migration by seeking to redefine it within the asylum system instead of admitting or even embracing immigration for what it is. This article will treat the (economic) immigrant, the asylum-seeker and the refugee together, since following my argument it is perhaps unrealistic, and (as European governments find) costly, to keep these migrants distinct.
The Refugee Convention: is 1951 status still applicable?
European leaders cite the Amsterdam Treaty in order to assure us that asylum remains an indisputable priority and that everything is being done to discourage the exploitation of human-beings through trafficking and smuggling. On the other hand, those very same leaders also seek to reassure us that, with proposed lists of safe-countries, increased visa restrictions and the third country rule individual nations are shored up against those floods of bogus refugees threatening our continent. In reality these floods are a mere trickle when compared the situation encountered by countries such as the DRC, Pakistan, Armenia; all developing countries, all hosting protracted refugee populations of over a million. Yet it is true that the figures in Europe have been increasing since the early 1980s and the system involving a lengthy process of status determination followed by reception, integration or deportation, is under strain. As the former British Home Secretary Jack Straw pointed out, developed countries spend $10bn annually assessing asylum claims, ten times the figure given by those same countries annually to UNHCR.
In response to this situation some commentators have suggested that refugee status determination under the obligations of the 1951 Convention is unworkable and that we need a more comprehensive harmonised framework with which to tackle asylum. Member States suggested at Tampere that there be not only a list of safe countries, but also a restriction of freedom of movement (which can mean anything from systematic detention to a form of dispersal). In his speech An Effective Protection Regime for the Twenty-first Century Jack Straw argued that greater burden-sharing with countries of origin could include screening of asylum applications in those countries. This is a flagrant undermining of a persons right to asylum when fleeing their country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion as it leaves the status determination procedure in the hands of would-be persecutors.
In an attempt to circumvent this legal definition States have proposed complementary or subsidiary protection as well as temporary protection as alternatives to full refugee status. The granting of a non-convention refugee status is now routinely practised in a number of member states. Temporary protection was implemented, with some practical success, for Kosovar refugees through the Humanitarian Evacuation Programme. However, if we look more generally at patterns of migration, experience teaches us that temporary and alternative status lead to uncertainty: The German experiment with guest workers was based on the assumption that groups would come to work for extended periods before returning home to be replaced by a fresh, young and enthusiastic batch. Instead, the notion of a temporary seasonal migrant was exposed as a myth. In reality reception and integration are not distinct phases something which many German-born Turkish children denied German citizenship found out to their cost. In a similar way subsidiary protection leads to the creation of second-class citizens: people with fewer employment rights, more restricted access to social welfare with limits on political participation, family reunification and eventual citizenship. More importantly for the argument here, granting subsidiary protection confuses the issue further by effectively saying, alright you can stay, you are not technically a Convention refugee, but you are not a bogus asylum-seeker either.
The confusing and misleading language surrounding asylum and immigration is not restricted to the popular media but, I would argue, has infiltrated policy-making. We are told that asylum-seekers are not genuine, but are economic migrants. But what if the refugee who is fleeing persecution also happens to be fleeing hunger and instability which were the cause and consequence of the impunity? As countries are increasingly torn apart by the tit-for-tat of Civil War, it becomes difficult to identify persecution by various non-state actors. The trouble is, in a world where poverty is linked to persecution (and where technology facilitates international travel) the persecuted refugee and the economic migrant cease to be distinct.
Recent EU initiatives toward common reception standards are praiseworthy for trying to eliminate inconsistencies in the reception and integration of different categories of refugee. Yet they are failing to tackle the true problem: the lack of political will to admit that asylum and immigration are linked and that integration is a necessary and satisfactory outcome of the asylum procedure as well as the immigration procedure. Here the fundamental value of the clear refugee definition under the Convention can be felt. Adding definitions and gradations of refugee status on the one hand, whilst restricting immigration on the other is courting disaster.
The crux of the matter is that, whilst rhetorically blasting illegal immigration, through initiating subsidiary protection of this kind state governments are acknowledging migration for the organic (and unstoppable) phenomenon it is. At the same time the practice of detention in fact criminalises asylum, allowing it to become associated with the illegality of immigration.
There is no doubt that applying the 1951 Convention is problematic when asylum becomes the only channel through which traditional labour-market migrants can enter a country. This leaves a situation that is unworkable for the UN (which itself initiated temporary protection under the Kosovan HEP thereby undermining its own convention) and equally for the Member States who are spending billions in vain trying to keep people out. We are in a situation where the 1951 Convention is the only legal currency that host countries, UNHCR, refugees and economic migrants have to deal in, yet it is becoming so distrusted that asylum itself is de facto illegal. Where a State lacks faith in the applicability of the legal refugee definition to the modern asylum-seeker, that asylum-seeker is guilty until proven innocent.
A dead end or is there another way in?
The current vicious circle of distrust and recrimination could be avoided if the EU were able to produce a sensible common asylum and immigration policy. Such a policy would need to be coherent not only in the sense of harmonising standards of reception and integration, but in terms of the long-term view - that is, the aims and consequences of integration. Since States will never accept a replacement for the 1951 Convention to equal its standards of international protection, most humanitarians are bound to defend it. UNHCR is caught in a trap, defending a regime which is being increasingly undermined in the EU context, knowing that the constituency it defends constitutes a small part of a bigger picture.
So what if we addressed that bigger picture? What if we admit that we are witnessing the wider phenomenon of transnational migration, an organic process with its roots in human history? What if we accept that the greatest challenge to the European project, the nation state and civil society is not influxes of new arrivals but our ability to integrate those people and tap into the resources they bring? In this sense, the next wave of enlargement may well be the first test for contemporary Europe in terms of legal transnational migration.
Legalising migration has many benefits which European leaders have recognised, but not fully digested: Europe has a depreciating, if not stagnant, birth rate and an ageing population which in a few years time will have a devastating effect on social welfare systems. Legal immigrants not only represent a healthy workforce, but also taxpayers, able to contribute financially as well as socio-culturally to civil society. Irregularity leads sans-papiers (be they illegal immigrants or unprocessed asylum-seekers) not only to criminality, but also crucially to a perceived criminality most easily identified by the colour of their skin. In multi-cultural societies this is an inflammatory problem: To those fully-integrated British Muslims, traditionally perceived as a hardworking and upwardly mobile sector of the community, the prospect of being mistakenly branded a criminal or its latest politicised variation asylum-seeking terrorist must be a frightening one. However it is the very contorted myth of the asylum-seeker and the confusing untruth of asylums cat-and-mouse game that leads to an overspill of racial tensions.
It is my opinion that free movement of human capital is an inevitable consequence of globalisation. States must have the courage to harness its promise now rather than attempt to swim against the tide indefinitely. By admitting the necessity for traditional labour market migration States can exploit a much-needed resource on their own terms. Managed migration can avoid costly asylum and immigration procedures which are impracticable within the context of the internal market and the single currency. In doing so, it can free the asylum system to focus on protecting the most vulnerable people fleeing persecution. Perhaps then migrants and asylum-seekers can be seen in a realistic and positive light for what they are and what they could achieve.
To conclude, we find ourselves confronted with a situation where States walk a tightrope between endorsing high-minded ideals in favour of the right to asylum, whilst producing policies to deter migration. This stance is problematic where modern migration is not temporary but a long-term phenomenon and where the distinction between forced and voluntary migration is called into question. In addition, the act of restricting legal channels of migration has led immigration to become de facto illegal and asylum to become criminalised. Instead of undermining the 1951 Convention with multiple statuses of subsidiary protection through the asylum channel, I believe that the EU needs to incorporate external migration into the framework of its project. We need to evolve away from thinking in simplistic terms of innocent, persecuted 1951 refugees over there and scrounging, falsifying economic migrants over here and produce a workable policy recognising the human rights of migrants.