Few people can be unaware of the massive migrant crisis now taking place in Europe – so much has been written recently, and so many pictures and videos viewed that the issue has become uppermost in many people’s mind. There are a number of aspects to consider – among them humanitarian, geo-political, economic and legal, and no-one has a definitive answer as to what to do. Angela Merkel, displaying an admirable sense of compassion and knowledge of her own country’s history, promised to take as many refugees as could make it to Germany, yet within days had been forced to rescind that decision. The immediate effect was to create a whole new “crisis” as refugees trying to get to Germany are now in a limbo position in countries such as Hungary, Slovakia, Czech Republic, Slovenia, Serbia and Croatia.
The magnitude of the situation needs to be considered. So far this year 680,000 people who have not been granted visa have arrived in Europe from other countries. Estimates as to the total who will eventually arrive range from 800,000 to over 1.2 million – but of course no-one really knows. Then there are those who try to come but don’t make it, now totalling many thousands and with poorer weather to come, probably an escalating number over the next few months.
So what is the legal position and how does this affect the various countries involved? The first framework we should look at is International, followed by European.
The 1951 Refugee Convention (not its proper title) defines who is a refugee and sets out the obligations of nations who grant asylum. The Convention builds on the 1948 Universal Declaration of Human Rights which had its roots in the Second World War. A refugee is defined broadly as “a person who owing to a 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……..unwilling to avail himself of the protection of that country; or who is unable or, owing to fear, is unwilling to return to it…”
There is little doubt about the definition, but a great deal of doubt as to whether persons currently seeking asylum under it are in fact covered by that definition. We have recently been told that 4 out of 5 refugees entering the EU are not Syrian, but are from other nations such as Somalia, Sudan, Afghanistan, Libya, Bosnia and Albania.
The European Union has two additional treaties, and one over-riding principle, which together have contributed (either in their implementation or because they have been blatantly ignored by signatory states) to the current situation – though of course the underlying reasons why so many people are coming to Europe is rooted elsewhere.
Firstly the Schengen Agreement signed in 1985 led to a borderless area of some EU states (though not all) and also included a few countries outside the EU such as Norway and Switzerland. The word “borderless” is the key here – people can travel freely, without having to show any documentation, within the Schengen area – which means just about all of mainland Europe apart from Bulgaria and Hungary. The UK and Ireland decided not to join, so you still may need to show your passport when travelling across the Channel to and from France.
The second treaty is the Dublin Regulation which regulates the treatment of refugees, and which basically states that refugees must be registered in the first country in which they seek asylum. The thought behind this is beautifully simple and eminently practical – you don’t want people wandering around different states being passed from one to another with nobody taking responsibility. However, there has been a significant reluctance to follow this convention, as it not only takes time and effort but also places a big burden on the receiving country. Better (some say) to pass the burden to someone else as quickly as possible and have your own country simply act as a transit route – after all, if the refugees want to get to Germany, France or Britain, why stand in their way with paperwork and all the bother and expense of setting up camps where refugees could be languishing for years on end before all the details are processed.
The underlying principle is the free movement of the four elements which make up an economy – goods, capital (money), services (such as insurance) and people. Not all free trade areas have these freedoms – indeed the EU is the only one to include people, but the founding fathers wanted to create a United States of Europe on the lines of the USA, whereby there is complete freedom to move between states. It makes a lot of sense and increases the potential for economic activity, but of course there’s also a potential downside.
Recently there has been agreement among some members (but by no means all) about allocating certain numbers of refugees to EU countries in an effort to share out the burden. This has caused major animosity among some states (Hungary, Bulgaria, Slovenia) as it has been agreed by qualified majority voting – basically the big countries have outvoted the smaller ones on an issue of principle, and QMV was never intended to be used in such a way, or in such a hurried fashion.
So now we now have a conundrum, or indeed two conundrums. The first is the dilemma about having a borderless internal area. It only works with a strong external border (such as exists in the USA or Australia), so that only legitimate people can move freely. That clearly is not the case in Europe and we can see that Europe effectively has a very porous border system. The other way of regulating the movement of migrants is to allow countries to police their own internal borders (which is happening de facto anyway). This is completely against the principles of the foundations of the EU as envisaged and leads to countries fragmenting from one another rather than integrating.
The second conundrum is that refugees who enter Europe cannot realistically be “allocated” to a country, because that would violate the free movement of people. Or do we treat refugees as some sort of second class citizens, with only some of the rights guaranteed under law? If a family is “allocated” to Portugal but wants to settle in Germany, what’s to stop them doing so? The free movement of people is guaranteed……
The issue will not go away any time soon, and politicians taking the moral high ground with talk of humanity and compassion will do little to assuage the populations of those countries which are bearing the brunt of a very real and very immediate crisis of enormous scale. Some practical solutions need to be found, and found fast. This will test the integrity of the EU to a degree that has not been seen even with the financial crisis – my prediction is that it will be the catalyst for a big increase in protectionism and the rise of nationalism – the very antithesis of the European Union. Unless politicians can recognise the genuine concerns of their electorates then the very fabric of the EU is at stake, and the worst to suffer will be those refugees fleeing a far worse terror.
Some links to further reading and the treaties referred to here:
UN Convention and Protocol Relating to the Status of Refugees and other material from the UNHCR can be found at:
The European Council on Refugees and Exiles site is here, and contains the text and information relating to the Dublin Regulation
Qualified Majority Voting
Articles on European integration – or otherwise