The (Poor) State of Health of EU’s Asylum Policy

Gemma Pinyol-Jiménez

8 mins - 28 de Junio de 2023, 07:05

Every 20 June, since 2001, International Refugee Day has been commemorated with the aim of remembering all those people who have been forced to flee their homes and the international commitment to welcome and aid them, as is articulated through the Geneva Convention of 1951. The figures published this year by UNHCR are devastating: more than 100 million people – a threshold that has never been exceeded to date – have been forced to flee their place of residence, fleeing wars, conflicts, violence, and systemic human rights violations.

The Geneva Convention was born out of a desire to offer protection to European people who had to flee after the Second World War. It was not until 1967, with the New York Protocol, that the international protection system became truly universal, obliging signatory states to provide care and protection for refugees and to examine asylum applications where necessary. In the countries of the European Union, all of which are signatories to the Convention, the right to asylum has also become binding legislation thanks to its inclusion in the Charter of Fundamental Rights of the European Union.

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But in recent weeks, in an almost hyperbolic manner, various situations have arisen within the European Union that should serve to reflect on the poor state of health of asylum in European countries. Despite the fact that the ‘fight against irregular immigration’ has become a quasi-exclusive objective of the European Union’s immigration and asylum policy, it is worth remembering that, by its very definition, many people seeking international protection move without having had the opportunity to fill out a visa application at source (that is to say, irregularly). And it is also worth remembering that the Geneva Convention itself reminds us that, precisely for this reason, persons seeking international protection cannot be penalised for not having their documentation in order. In other words, the much-boasted fight against irregular entry often hides a violation of people’s right to access international protection. With this in mind, the following cases are unfortunately not unique, but they serve to illustrate the deterioration of the concept of international protection within the European Union.

First, on 11 June, the EU signed a partnership agreement with Tunisia that, among other issues, proposed improving cooperation on migration issues. This agreement did not take a comprehensive approach to the issue of migration governance, but rather, in line with the EU’s securitising forces, it was based primarily on combating irregular immigration from Tunisia, improving border control, and guaranteeing the return and refoulement of people attempting to gain irregular access to European territory from Tunisia. It goes without saying that strengthening relations with authoritarian regimes, such as that of Kais Said in Tunisia, is nothing new for the EU, and that demanding that both border control and returns guarantee the protection of human rights is a line that ends up being a hollow in this sort of agreement. The agreement, reached by the President of the European Commission, Ursula von der Leyen, together with the Prime Ministers of Italy and the Netherlands, Giorgia Meloni and Mark Rutte, includes an aid package of more than €1 billion, of which €105 million will go towards improving the protection of Tunisia’s maritime borders. This is an example of externalisation of border control that we have already seen on many occasions, from Morocco to Turkey via Libya. This outsourcing that leaves the aforementioned European security in the hands of third countries, who, by the way, usually ask a (high) price for it. And, it also seeks to redistribute responsibility for the protection of people in need of international protection, not only because the conditions in which many of them are living in neighbouring countries are well known, but also because it means that the rights of asylum seekers can be violated in deferred terms. Thus, the Turkish migration management agency boasted a few days ago that it had returned more than 13,000 nationals from Afghanistan to their country of origin, which would hardly be defined as a safe country at this point in time.

Secondly, on 14 June, amidst horror and indifference, we once again witnessed the shipwreck of a boat off the Greek coast with more than 750 people on board. The event confirms that the Mediterranean has become, as Libération said, a graveyard for people trying to reach the coasts of the European Union, and an embarrassment for the Union, as Pope Francis recalled in 2013 before one (or more) shipwreck in Lampedusa, which, according to European leaders, should not happen again. Ten years later, not only is it evident that these tragedies continue to happen, but it seems clear that there is neither the will nor the interest to truly prevent them. In fact, the actions of the Greek coast guard suggest that they played an active role in the disastrous outcome of the boat and that they could have intervened much earlier than they did, without the human cost that this has entailed. As the editorial director of Human Rights Watch noted, shipwrecks in the Mediterranean have become the European version of shootings in the United States: they are mourned, the policies that cause them are maintained, and when they happen again, they are mourned again, only to remain unchanged. Inaction to save lives is compounded by hot returns or pushbacks, abandonment in the middle of the sea, and other acts of ‘necro-action’ that generate waves of criticism that fail to change anything.

Third, although chronologically it occurred prior to the two previous examples, on 8 June an important agreement was reached in Brussels at the JHA Council to advance the approval of the new Migration and Asylum Pact, proposed by the Commission in 2020. The agreement, which will have to be negotiated with the European Parliament, focused on the approval of the Regulation on Asylum and Migration Management and the Regulation on Asylum Procedures, and was opposed by Hungary and Poland, which continue to argue – contrary to what the founding Treaties indicate – that the European Union should not have a common asylum system. For the Commission, the agreement can be considered a triumph, given that the Pact dossier has been dragging on for the past three years without reaching agreement. But in terms of content, the proposal reached normalises the existence of hotspots as a model for the reception of people in need of international protection (which have been harshly criticised for the conditions in which people are held) and seeks to extend the Greek model to other countries with external borders, including Spain. It is also committed to reinforcing the logic of externalisation through returns and refoulement, adding a new consideration such as the commodification of the right to asylum. Thus, those member states that do not wish to comply with the ‘solidarity’ distribution of resettlement or relocation mechanisms will be able to stop receiving people in need of international protection upon payment of €20,000 per person. The intention is to approve the Pact under the Spanish presidency in 2023, and although it is true that this could be seen as a success of that presidency, the suitability of this pact, which enshrines a securitised model of migratory de-governance, must lead to serious reflection on its suitability.

This brief review confirms the poor state of health of asylum law in the EU. As Rafael Lara of the Pro-Human Rights Association of Andalusia (APDHA) pointed out, the common asylum policy advocated by the member states seeks “that they do not come; if they do come, that they do not arrive; and if they do arrive, that they are expelled as soon as possible”. The securitisation, externalisation, and commodification of immigration and asylum policies are thus becoming the mainstays of actions that, over the last twenty years, have proved inefficient and lethal at Europe’s borders. Calling once again for the need for a comprehensive approach to genuine migration management at the European level will once again end up falling on deaf ears. And so, slowly but surely, we will continue to see, amidst the frustration and anguish of some and the indifference and lack of concern of others, how in the Mediterranean the guiding principles of the European project are also sinking.
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