RESPONDing Migration: Common trends in Migration Governance in Europe and Beyond

By Veronica Federico, Andrea Terlizzi, and Paola Pannia | University of Florence

The 2015 Refugee crisis has been one of the most critical challenges the European Union has faced in the past decades. The crisis has revealed a number of criticalities, both at the level of the EU and at the level of member states, which determined severe deficiencies in the migration governance system. These deficiencies had tremendous impact on migrants’ lives and on hosting societies social and political cohesion. Yet, criticalities in migration governance pre-existed the crisis at the EU and member states level, and these criticalities can be found also in extra-European countries, even though in different forms.

A complex and fragmented legislation

With the exception of Iraq and Lebanon, all RESPOND countries (Austria, Germany, Greece, Hungary, Italy, Poland, Sweden, Turkey, the UK) have signed the 1951 Refugee Convention and its additional protocols, although Turkey has retained a geographic limitation to its ratification, that is, only those individuals fleeing war and persecution as a consequence of events occurring in Europe are recognized as refugees. The principle of protection against torture or inhuman or degrading treatments (Art. 3 of the European Convention of Human Rights) has been incorporated into the countries’ Constitutions, and the right to asylum and related freedoms and benefits are recognized in all RESPOND legal systems. As for the right to asylum, all EU RESPOND countries are bound by the EU acquis aimed at the creation of a Common European Asylum System (CEAS), with the exception of the United Kingdom, which only abides by the first phase of the CEAS, namely the ‘Refugee Qualification Directive’ (Directive 2004/83/EC), the ‘Asylum Procedure Directive’ (Directive 2005/85/EC), and the ‘Asylum Reception Conditions Directive (Directive 2003/9/EC).

Despite this ostensible rather homogeneous background, a closer look at national migration and asylum laws reveals a first, common trend in all countries: the legal framework on migration and asylum is extremely difficult to navigate. In each country, the national legislations have been changing continuously and not necessarily coherently. For example, in the United Kingdom, 12 Acts of Parliament regulating immigration issues have been approved in the last twenty years. In Italy, the Consolidated Law on Immigration is the result of multiple and fragmented normative provisions, which have jeopardized internal consistency and effectiveness. In Austria, the Alien Act was issued in 1992, as follow up of the Aliens Police Act. Then, in 1997, the two acts were merged in the Residence Act, to be separated again into the Foreign Police Act and the Settlement and Residence Act, which form the legal basis of the current provisions since 2005. Moreover, in most RESPOND countries, acts of primary legislation only provide a general framework, with immigration issues being de facto regulated in detail and implemented by a variety of acts of secondary legislation (e.g. regulations, ministerial circulars, administrative acts, etc.). This trend reaches its peak in Turkey, where the entire regulation of Temporary Protection (which is the main form of protection granted in the country) relays on secondary legislation. Two serious implications stem from this phenomenon. First, secondary legislation is usually less accessible and, as it derives from primary sources, strictly relies on and refers to them, making the real content of the rules more blurred and opaque. Second, this phenomenon points to a erosion of the role the Parliament in the law-making in this field. Indeed, most countries bypass the use of ordinary legislation and frequently resort to decrees or similar acts, thereby de facto concentrating decision-making and implementation into the hands of the executive, and decreasing the opportunities for democratic debate and control.

CRIMINALISING migration

A common trait of the majority of recent RESPOND countries migration law reforms has been the tendency to dramatically narrow the opportunities for legal, documented entering into EU countries, Turkey and Lebanon, and, as a consequence to criminalize as undocumented migrants all those that can not fit into the very narrow categories of welcome migrants. Moreover, the tightening of migration laws has been coupled with merging the status of ‘protection seeker’ with a condition of ‘illegality’ or ‘irregularity’. More and more frequently, the distinction between criminal law and immigration law is not clear cut. Fueled by a narrative of “securitization”, this blurring has been analyzed and theorized as part of what has been called “crimmigration law”. In this regard, Hungary is probably the most indicative case. In February 2015, the government launched an anti-immigrant billboard campaign, which preceded the National Consultation on Immigration and Terrorism. The consultation was followed by regressive legislative reforms, which have made large use of criminal law and its punitive tools. In addition to that, after the declaration of the “crisis situation caused by mass migration”, the army was entrusted with receiving asylum seekers’ registration applications, while the police retained significant quasi-arbitrary powers in the management of migration. A similar situation can be observed in Poland, where the unauthorized crossing of a border is considered a criminal offence. Furthermore, the nexus between terrorism and refugees is being propagated by media and promoted by the government. In the United Kingdom, according to section 2 of the Asylum and Immigration Act 2004, asylum applicants who cannot provide identification documents may be charged with a criminal offence, punishable by a prison sentence of up to two years.

Preventing and restraining access to international protection

Despite national, regional and international obligations, an overall “restrictive” approach can be observed in all RESPOND countries, where physical and procedural measures prevent and restrain access to international protection and are coupled with a downgrading of foreigners’ entitlements.

RESPOND countries have designed and deployed measures entailing both physical and procedural barriers. Concerning physical barriers, the systematic recourse of push-back operations and the construction of fences and walls, as well as intensified border controls have physically prevented migrants from accessing territories and consequently submitting their asylum and/or protection claims.

The “hotspot approach” can certainly be regarded as one of the main tools falling under the strategy of controlling access to the state and – more broadly – to Europe. First presented as part of the European Agenda on Migration, the “hotspot approach” was meant to assist frontline Member States facing exceptional migratory pressure at the EU’s external border. More specifically, in Greece, the operation of hotspots has been dramatically affected by the EU-Turkey statement, aimed at curtailing migratory flows in the Aegean Sea. Initially meant to fastly channel newly-arrived migrants into procedures of international protection or return, after March 2016 hotspots were substantially transformed into centers of detention aimed at implementing returns to Turkey. This has led to collective expulsion and push-backs.

The narrowing and slowing down of access to international protection has also been a secondary effect of procedural tools intended to streamline the Refugee Status Determination (RSD) process. From 2011 to 2017, the growing number of arrivals and asylum applications put severe strain on the asylum systems of EU member states, which responded with legislative reforms aimed at boosting the efficiency of RSD procedures. Although conceived to achieve procedural simplification, these reforms often resulted in the reduction of procedural guarantees. In Hungary, for example, only a single instance of judicial review is provided for considering a negative decision on an asylum application. In 2017, the removal of one level of appeal was approved also in Germany and Italy, jeopardizing people’s rights. In Greece, no legal aid is provided to applicants willing to appeal a second instance negative decision. Restriction of applicants’ rights during the appeal process can be also observed in Poland, where a negative decision causes the automatic withdrawal of social benefits.

Caught in a legal limbo

On 25 June 2018, a rescue ship of the non-governmental organization Lifeline was refused permission to dock at Italian and Maltese harbours. The migrants rescued by the ship were stuck at sea for several days, under the threat of bad weather and in urgent need of medical care. Weeks before, the rescue ship Aquarius was stranded at sea without permission to anchor on Italian coasts. More than 600 migrants have been waiting for days on the Aquarius for a safe disembarkation. These events paradigmatically point to the condition of uncertainty that characterizes the legal status of migrants throughout all RESPOND countries. In some cases, the uncertainty mainly results from a lack of sound legal norms to secure the status of asylum seekers and refugees. This is the case in Lebanon, for instance, where a comprehensive framework to regulate the presence and the entitlements of refugees and asylum seekers is still lacking. On 31 December 2014, following the so-called “October Policies”, Syrians were admitted to Lebanon only as migrant workers or under the so-called “humanitarian exception”. However, both these statuses have been almost impossible for Syrians to access. On the one hand, the “humanitarian exception” was reserved to particular cases such as unaccompanied and/or separated children with a parent already registered in Lebanon or persons living with disabilities. On the other hand, due to strict bureaucratic requirements, the regularization channel based on work was extremely hard to obtain. As a result, a vast number of Syrians are in a legal limbo, with no access to basic rights and social services, such as healthcare. A similar situation of a legal gap also applies in Turkey, as a consequence of the specific geographical limitation ratified by Turkey as part of the 1951 Convention. The two legal statuses of “temporary protection” and of “conditional refugee status”, intended to complement international protection status, do not offer a sound framework for upholding the rights of refugees and asylum seekers.

Without a safe harbor, without an easily intellegible legislation, without clear, predictable and human rights friendly procedures, without a status allowing for enforceable rights migrants remain highly vulnerable in Europe and beyond. And migration management remains a control, prevent and discourage operation.

Based on National Country Reports and the Comparative Report prepared for the RESPOND’s first Work Package (WP1), available at: www.respondmigration.com