The newest proposal from the "European Values'" think tank is unrealistic and at odds with the law

Migration is not only about refugees

We encounter the paper’s first problem right in its beginning; the confusion between the statistical data and legislation concerning refugees on the one hand, and the data and legislation concerning “usual” migration flows on the other. Such a distinction is crucial because while regulating the so-called economic migration is possible, regulating the numbers of refugees (i.e. forced migration) is very difficult. Moreover, the primary frame when considering the refugee issue is our constitutional commitment to human rights and international as well as EU law. In contrast, in the area of economic migration, the state has a considerable opportunity to act at its own discretion, and thus it can influence the final numbers of migrants entering the country.

These “confusions” can be observed right in the paper’s introductory section, in which the authors discuss the “uncontrolled arrival of more than one million applicants and illegal migrants into the EU” in 2015, followed by information about the citizenship composition and the rhetorical question “how many persons from Africa and the Middle East do we want to provide with a chance to come here?”

Further, the authors point out that according to statistical estimates, 3 million persons will arrive to Europe by 2017. They end the text with information from the United Nations on the estimated arrival of up to 31 million persons. However, it is instantly clear that the sources of information used do not speak of refugees arriving to Europe, nor that they are arriving from Africa and the Middle East in particular. [1]

Moreover, the way the rhetorical question is formulated demonstrates the authors’ utter ignorance of a state’s international obligations from which European legislation concerning refugees emerges.  Neither The Convention Relating to the Status of Refugee as inscribed by the 1967 Protocol nor the current European legislation allow for distinguishing among refugees or providing them with selective international protection on the basis of their nationality or continent of origin. All EU member states have had, and continue to have the same obligations towards refugees, including the obligation of not deporting them back to a country where they are faced with danger (i.e. the principle of non-refoulement). In case they find themselves in the state’s territory, its border crossings and territorial waters included, the states are obliged to assess their asylum applications. [2]

The First Safe Country Principle

The policy paper builds upon the argument that the people entering Europe “are usually not those who were individually persecuted” in the sense provided by the definition of a refugee in The Convention Relating to the Status of Refugee [3], but „they left their country of origin due to a life threat resulting from an armed conflict.“ At the same time, the authors claim the reasons behind the arrival of Syrians to Europe are primarily socio-economic[4]. Such a claim is at odds with all the available statistical data which clearly demonstrates that it were predominantly Syrians who were exceptionally granted either the refugee status or a subsidiary protection in almost all the EU member states.#_ftn5" title="">[5]

From this point of view it is rather difficult to see in what new way the EH’s proposal on „the first safe country principle“ – according to which, as the authors argue, the refugees and asylum seekers are meant to be returned back to the non-European countries – is supposed to be helpful.

If the goal is to allow the EU states to return as many asylum seekers as possible, then it is worth mentioning that the EU legislation already contains such tools and the member states are applying them. The current legal system, however, uses the following terms: first country of asylum[6], third safe country[7], and safe country of origin[8]. When the person arrives from the first country of asylum (where they have applied for asylum), any member state including the Czech Republic can consider their asylum application inadmissible (and the applicant must leave the EU). In case the country of origin is considered to fall under the category of safe country of origin, then under the circumstances discussed in the following text, the applicant can be returned as well. The authors of the EH policy paper, apparently lacking any basic knowledge of the above terms, conflated two or three different legal institutions. Thus they seemingly created a magic path for an effective return policy of asylum seekers and refugees.

These legal institutions have been recognised by the EU legislation for over ten years.[9] Further, these institutions allow for the returning of international protection seekers either to their country of origin or to a country where they have a higher chance to be prioritized than in the EU, including countries in which they have established ties. However, in the case of a return, several conditions must be met first: 1/ the country must have an existing system that allows for obtaining the status of a refugee (that is definitely not the case in Pakistan or Lebanon for example [10]), 2/ human rights must be observed in the country (which is not the case neither in Iran nor Pakistan for example [11]), and 3/ the chance that the country will attempt to return the applicant to another country where these conditions are not met must be ruled out (i.e. the so called chain refoulement). According to the information available, the final condition is currently being violated by Turkey and Serbia where people are being returned through the simultaneous violation of the non-refoulement principle.[12] 

Asylum Centers in Africa and the middle east?

Today, third safe countries process the applications of those “pushed back” from the EU using the above described tools. For years, so-called readmission agreements signed with these countries have been applied. A number of countries from which the refugees come to Europe are committed to the fight against the human smugglers, and their legislations penalize illegal crossings of borders.

The proposal to use asylum centers in “other third countries”; meaning in countries that cannot possibly be considered as safe, is beyond any imaginable possibility both from the point of view of international law and at the practical level. The idea that we can create safe enclaves in countries where even the conditions for safe return are not met as human rights are constantly violated (as is the case of Libya) or due to an ongoing conflict, is delusional. Equally impossible is to create EU jurisdiction that would allow for evaluating asylum applications. Clearly, if the EU or USA had the power (or would just effectively use it) to force some of the problematic countries of the Middle East or Africa to observe human rights standards there would not be any need for creating asylum centers and people would not be forced to leave their homes. 

The legal paths of arrival into the EU

In the proposal, EH points out the need to effectively utilize the so-called principle of resettlement which is supposed to help decrease the number of risky sea journeys that the many of the refugees undertake. In principle, one can agree with this proposal of course. However, the central problem is again that the authors do not distinguish between resettlement and so-called relocation and use inaccurate data in making their point. The current crisis should have been resolved through internal relocation which, contrary to resettlement, counted on relocating persons who were not granted any official protective status from Italy and Greece yet, but at the same time, were likely to obtain it [13]. Usually, this was applicable mostly to Syrian citizens.

Nevertheless, the main problem is that until now these plans have not been fulfilled and only a minimum number of people have been relocated.[14] The member states are obviously in no rush in fulfilling these plans effectively. And once again, EH does not offer any practical proposal to solve the situation.

Non-governmental organizations have been long calling for the member states to allow refugees to enter legally into their territories by using some type of humanitarian visas/stay. Most member states have ignored these calls, and whether they decide to take this path depends solely on their voluntary consideration.

Detention and Identification of the new arrivals

EH further proposes to resolve some of the problematic aspects of the refugee crisis by identifying and registering all persons who enter the EU with no legal permission to stay, and depriving them of their freedom.  

I cannot but agree with the first part of this reasoning. Although presented by EH as “a new proposal”, it is worth mentioning that the current legislation already imposes an obligation upon both legal and illegal arrivals to provide their finger prints[15]. The main complication during the last year and a half lies in the member states’ repetitively insufficient provision of an effective registration service at the border (especially in Greece and Hungary). There states argue the number of arrivals outdo their own capacities. We can question whether that is really the case (for example Germany and Sweden did not report such deficit while dealing with a large number of applications). In any case, EH does not seem to offer any solution to this rather complex situation.    

It is necessary to revise the proposals on depriving all new arrivals and illegal migrants of their freedom. First, it is important to mention that the current legislation allows for the administrative detention of foreigners staying in the Czech Republic (respectively in all EU member states) illegally, including those who apply for international protection [16]. But again, this occurs under certain strict conditions specified by law, and certainly not automatically, as proposed by EH.

Moreover, there is a significant difference between detaining a person who is being legally deported by the state, and detaining those who apply for international protection. Both EU and Czech legislation differentiate between the two[17]. In this case of the applicants for international protection, it is possible to detain them only if they use fake identity papers, or if it is impossible to identify them, or when they apply for international protection only in order to avoid deportation [18]. “The detention of the applicants should only be a last resort and should only be realized when all alternative solutions which involve no physical detention have been considered with the aim of securing a better physical and psychical integrity of the applicant.”[19] The detention must be as short as possible and an effective judicial review must be provided. It is at odds with the basic principles of the EU’s legal system to propose collective and indefinite detention.

The fact that the member states have been making use of these possibilities abundantly when dealing with the international protection seekers during the refugee crisis, and in contradiction with legal requirements, is proven in the judicature of Czech Administrative Courts[20] and in the European Court of Human Rights. A entire new article could be written about the member states’ repeated illegal detention of typical vulnerable groups such as families with children,[21] as well as persecutions of homosexuals[22] and inhumane living conditions found in some of the European detention centers [23].

Nothing New, nothing concievable

To summarize, after close inspection of the  EH proposal, I can conclude that it neither offers something new that was not already included in the current legal system, nor something that could become part of a state’s legislation without violating the most elementary principles of democracy. The authors therefore do not help the politics and the real experts in solving the main question, namely, how to secure the observance of the current legal frameworks and international commitments and their enforcement within the member states, including the Visegrad countries.

We cannot blame neither the legislation itself nor Bussels for the member states’ noncompliance with  the relevant legislation. It is foremost a problem of the individual member states’ apparatus.

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[2] This clearly stems from Act 3, paragraph 1 of the so-called Procedural Directive: Directive no. 2013/32/EU of the European Parliament and of the Council from 26^th June 2013 on the collective government concerning allocation and removal of the international protection status (recast)

 [3] According to the Article A paragraph 1 of the Convention, the person concerned is defined as who „finds himself out of his home country and has legitimate concerns of persecution based on his race, religion, nationality, social class or political views and, at the same time, is not able to accept or, with regards to his concerns, he rejects the protection of his own country. This applies also in the case of a person who does not dispose of any citizenship and who, as a result of the above mentioned reasons, finds himself out of the country of his current stay where he cannot or does not want to return. In case there is more than one citizenship, the term ʿcountry of citizenshipʾ applies to all of them. However, no person can be understood to have been deprived of his home country’s protection unless he renounces the protection of one of his countries of citizenship on the basis of compelling reasons and legitimate concerns.” A similar directive can be found in the Article of the Qualification Directive. Based on the European Court of Human Rights’ judicature, the Article 3 of the Human Rights and Freedoms Act, the Directive expands the definition of non-refoulement. The institution of subsidiary protection status  was created through this expanded definition and as part of the asylum acquis. A war conflict, an individual threat or so-called indiscriminate violence which involves any civilian in the country; these are among the reasons leading the state to provide subsidiary protection. See § 14a paragraph 2 Act n. 325/1999 Coll. On Asylum.

[4] The information is taken from a survey conducted by EH among Syrians in the Czech Republic. It is not indicated when and how the survey was conducted (for example which representatives sample was used)

[5] See the statistical office of the European Union: http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report. Decisions on Asylum Applications: „Syrians received by far the highest number of protection statuses in the EU Member States, including protection based on national legislations (95 200 positive first instance decisions, or 99% rate of recognition^[5]), followed by Iraqis (9 700, or 73%) and Eritreans (8 900, or 94%).“

[6] According to the § 2 paragraph 1 Letter o) of Asylum Act “the first country of asylum is a different state than the foreigner’s state of citizenship, or in the case of a person with no citizenship, it is a different country than the one of her/his last permanent residence, and in which the foreigner stayed before entering the territory. In the case that, according to the International Convention, this different country provided the foreigner with a refugee status, ²²she/he may still enjoy this different state’s protection and return to this state safely.” 

[7] According to the § 2 Letter l) of Asylum Act “a third safe country is a state different from the foreigner’s country of citizenship or, in the case of a person with no citizenship,  the state of her/his last permanent stay, in which the foreigner stayed and created bonds before entering the territory and

1. Where he can return and, according to the International Convention, apply for a refugee status²²
2. Where he won’t face persecution or any serious threat and
3. Where the principle of non-refoulement and a ban on expulsion is observed when these could potentially lead to torture and inhumane or humiliating handling as defined by  international law”

[8] According to the  § 2 paragraph 1 Letter k) of Asylum Act that accompanies the Procedural Directive “the safe country of origin is a state of which the foreigner is a citizen or, in the case of a person with no citizenship, it is the state of his last permanent residence,

1. Where constant persecution, torture or inhumane and humiliating treatments or punishments do not take place, nor is there a threat of violence in the case of an international or internal armed conflict
2. Which its citizens or persons with no citizenship do not leave on basis of reason stated in § 12 or 14a
3. Which has ratified and observed international conventions on basic human rights and freedoms, including the norms on effective legal remedies
4. Which permits legal entities who supervise the observance of human rights

[9] It is interesting to note that so-called Expedited Procedures, which allow for rejecting the application as unsubstantiated (in cases where the applicant only lists economic reasons or a situation of a general distress) have been applied for the same amount of time. § 16 of the Asylum Act addresses the situation in the Czech legal system.

[10] http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html

[11] It is enough to see annual reports concerning the situation of Human Rights in these countries from institutions such as Amnesty International, Human Rights Watch or The United States Department of State: http://www.state.gov/j/drl/rls/hrrpt/

[12] See the recent information provided by Amnesty International:https://www.amnesty.org/en/press-releases/2016/04/turkey-illegal-mass-returns-of-syrian-refugees-expose-fatal-flaws-in-eu-turkey-deal/ or a report on the situation in Serbia, Macedonia and Hungary: https://www.amnesty.org/en/documents/eur70/1579/2015/en/

[13] By resettlement I refer to the relocation of a person who has obtained a legal status and for various reasons it is necessary to re-locate her/him to a third country (i.e. new host country). According to information from UNHCR which is in charge of these programmes, “The U.S. is the biggest recipient of relocated refugees in the world; Australia, Canada and Scandinavian states offer a high number of places every year. In the last few years, the number of countries from Europe and Latin America who joining these resettlement programmes has increased, specifically from Europe and Latin America.” See http://www.unhcr-centraleurope.org/cz/co-vsechno-delame/presidleni.html

In last few years the Czech Republic has been actively involved in dozens of relocations for example from Malaysia or Uzbekistan. See:
http://www.mvcr.cz/clanek/azyl-migrace-a-integrace-azyl.aspx?q=Y2hudW09Nw%3D%3D

[14] The European Commission’s report from the 16^th of May states that 1500 applicants were resettled from Greece and 46 000 are still waiting to be resettled. See: http://europa.eu/rapid/press-release_IP-16-1763_en.htm

[15] See § 103 Letter k) Act n. 326/1999 Coll. On the Residence of Foreigners in the Czech Republic. Since 2003 the EURODAC Regulation has been establishing the database of applicants’ finger prints:  REGULATION (EU) No 603/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (recast)

[16] Under specific conditions this is allowed by Article 5 Letter f) of Convention of the Protection of Human Rights and Basic Freedoms. The Czech version mentions detention for the purpose of expulsion in § 124 Act on the Residence of Foreigners; the depriving of freedom of those applying for international protection is dealt with in § 46a and § 73 of the Asylum Act.

[17] In general, so called Directive on Return deals with the issue of depriving of freedom for the purpose of deporting persons with no legal stay. In case of  international protection seekers The Reception Condition Directive is applied.

[18] Further reasons: §46a paragraph 1) and § 73 paragraph 3) of the Asylum law.

[19] Preamble, Paragraph 20, Directive 2013/33/EU of the European Parliament and of the Council, which provide the norms for accepting asylum seekers (recast).

[20] E.g. the verdicts of NSS: čj. 5 Azs 236/2015 – 34 či č.j. 8 Azs 156/2015 – 44, č.j. 4 Azs 18/2016 – 43.

^[21] Recent examples: verdicts on A.B., A.M. and R.K. against France from the 12^th of July 2016

[22] In the verdict on O.M. against Hungary, the European Court of Human Rights repeatedly pointed out the vulnerability of the international protection applicants who went through persecutions. In this case it was an Iranian homosexual. Article 52: „Lastly, the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons. Again, the decisions of the authorities did not contain any adequate reflection on the individual circumstances of the applicant, member of a vulnerable group by virtue of belonging to a sexual minority in Iran.”

[23] The verdicts of European Court of Human Rights against Greece: for example the case of M.S.S. against Belgium and Greece from the 21^st of January 2011, Amadou against Greece from the 4^th of February 2016 and many more in between. See the short reports: www.asylumlawdatabase.eu.