Starting into the Council Presidency, Germany declared that migration policy in the European Union would be one of the focal points during the six months to come. Now, more than four months in, the issue many thought would be off the table due to different priorities during the corona pandemic has attracted more public scrutiny than anyone had imagined back in July 2020. The coronavirus especially affecting refugees who are most vulnerable, the burning down of Moria, the new proposal by the European Commission are just among the most prominently known developments but are far from being the only ones to mention. The official program for the German presidency states that “Europe must remain a place where all people, regardless of their background, convictions and world view, can feel free and safe.” Has Germany lived up to this promise so far? This article explores the tremendous gap between aspirations and reality of European migration policy.
European migration (non-)policy in 2020
The EU’s migration management and even more so the one of its member states has proven to be rather a mismanagement ever since the increased migratory movements to Europe in 2015. However, as inadequate as the polity might seem, even more problematic has been the politics and policy, eventually leading to one of the most deadlocked issues the Union faces moving forward. Germany and especially chancellor Angela Merkel, once by many celebrated as the leading voice of humanitarian values in the EU, can today hardly claim for themselves to differ significantly from many of the remaining member states. This is not to suggest Germany’s position would somehow be comparable to the one Hungary has claimed. Nevertheless, the attentive observer will not argue that the leading voice Germany was once attributed to being, became silent.
While the program for the presidency reads like a call to action, the year 2020 put this call up to the test: And it failed. Before Germany took over the presidency, Turkey decided to implement its open border policy (or at least the appearance of it to exert pressure on the EU). The degree to which European values have been thrown overboard was caught, once again, on camera. Greek border patrols performing push backs and denying access to the European asylum system, which is illegal according to international public law (principle of non-refoulement) as well as EU law, and attacking unarmed refugees with industrial ventilators to disperse tear gas as well as water guns. Journalists were, as time passed by, less and less granted access. As one member of the European Parliament, Erik Marquardt, put it: The past days have shown that just a few thousand refugees at one of the EU’s external borders are more than enough to abolish fundamental human rights. The European Commission represented by the EC president Ursula von der Leyen, the declared guardian of the treaties – which comprise the fundamental European values in Art. 2 TEU, such as the protection of human dignity and human rights – didn’t condemn the violence but rather commended Greece as the “European Shield” that protects the external borders. As if this wasn’t enough already, a few weeks later, the coronavirus reached Moria, after it had already reached the refugee camp on the island Chios. Instead of common European efforts to support the local administration, EU member states took a step back and mainly watched it happen. This list is by far not exhaustive but meaningful enough for the point to be made.
“Stating that Europe must remain such a safe haven – instead of becoming one – must sound cynical to all of those who have suffered the most under the EU’s inability to deliver on its foundational promise.”
Knowing what has happened throughout the past years, the presidency’s program was not expected to spark hope; and in large parts, it delivered on these expectations. Noteworthy at this point is the prose referring to European values, the rule of law and non-discrimination. “Europe must remain a place where all people, regardless of their background, convictions and worldview, can feel free and safe.” Stating that Europe must remain such a safe haven – instead of becoming one – must sound cynical to all of those who have suffered the most under the EU’s inability to deliver on its foundational promise. And it sounds even more cynical knowing what was about to happen in Moria and in the aftermath. Watching the little possessions the refugees had left in Moria burn down, seeing children completely on their own without any protection, knowing about the danger the coronavirus poses especially when no medical care is available and still – from the German perspective – just proposing to take in 150 children in such a situation of crisis, really says it all. Instead of common efforts to help people in need, the EU is accepting a new Moria, constructed on a former military training area, despite the many who have fled precisely because of the violence they have experienced. As such, the value-part in the program appears to be the rather mandatory preamble than something that should be deeply rooted in any given democratic society, not only when it comes to the citizens of the respective country. Not only does the program underdeliver on European values, but it does also underdeliver on ambitious reforms on issues such as border management and secondary migration.
Reform of the border management?
“There is currently no functioning European migration policy, as the recent events in Moria have clearly shown.” as Horst Seehofer, Federal Minister of the Interior, Building and Community, stated against the backdrop of the proposal for a European Pact on Migration and Asylum. Nearly all people would agree that no effective migration policy exists in Europe. Nevertheless, the question remains whether the new proposal does solve this issue. In the German presidency programme an “ambitious reform” of the current migration system is demanded. On the contrary, neither the presidency programme nor the Commission’s proposal can be classified as ambitious or ground-breaking. The new pact is based on the demands for more effective procedures for pre-entry screenings, faster asylum decisions and monitoring, more solidarity between the EU members and more effective cooperation with international partners. All these principles are neither new nor easy to implement. The ideas have been voiced a hundred times but have dashed against scarce resources and the unwillingness of member states. An effective implementation is thus not guaranteed even in the case that the member states actually agree to the proposal.
Additional contradictions can be found in the German presidency programme. On one hand, compliance with “humanitarian standards” is targeted. On the other hand, only four sentences later accelerated procedures at the borders are proposed which should also “refuse entry into the EU where it is evident that no need for protection exists”. But is it that easy to identify whether protection is not needed? The idea to send these asylum seekers away at the borders implicates the sacrifice of a proper asylum process In addition to that, illegal push backs carried out by Frontex and local border patrols are tolerated by the EU. These practises often go hand in hand with violent acts as reported by the Border Violence Monitoring Network. Consequently, the actual aimed practises paint a very dark picture for the guarantee of safe access to the EU territory and the postulated “humanitarian standards”.
Another example represents the sea rescue. While Horst Seehofer continuously talks about making the allocation of people rescued in the Mediterranean Sea easier, the German Ministry of Transport has adopted new shipping regulations essentially preventing further sailing of lifeboats. This contributed, furthermore, to insecure and threatful means of flight.
“The initiative of numerous German cities, counties and even states to house more refugees suggests that such free capabilities in fact exist. Horst Seehofer, the German Federal Minister of the Interior, however, still will not accept asylum programmes of individual German Bundesländer.”
In conclusion, Germany has called for a “truly fresh start” in the management of external borders but in reality, attempts take place to achieve new results with old ideas. Ironically, this sounds very similar to the famous definition of insanity attributed to Albert Einstein. The question remains whether this is also the case once refugees have been granted entrance to the EU territory or if the EU has lived up to its aspirations in this domain.
The fair distribution of refugees in the EU & secondary migration
But how will the EU deal with refugees and migrants who manage to enter European territory after all? Will they be the sole responsibility of border countries like Greece or Italy? Or will other states participate show solidarity and eventually agree on a common asylum and migration mechanism?
Currently, the EU is home to more than 440 million people. One might think that compared to that the number of refugees and migrants reaching Europe is insignificant. It seems like the capabilities of Europe to welcome refugees must surely be tremendous. The initiative of numerous German cities, counties and even states to house more refugees suggests that such free capabilities in fact exist. Horst Seehofer, the German Federal Minister of the Interior, however, still will not accept asylum programmes of individual German Bundesländer. Even though the lawyers Dr. Ulrich Karpenstein and Dr. Roya Sangi claim in a legal opinion that under special conditions like humanitarian emergencies each Bundesland has the right to take in refugees on their own. Seehofer presumably doesn’t want to weaken the German position in negotiations. By denying refugees the help that some German jurisdictions try to offer Seehofer sends a troubling sign to European partners like Greece and the desperate refugees alike.
However, not all countries within the Union are willing to take in any refugees and certainly no migrants from outside the EU. Germany has identified the distribution of refugees in Europe as a key problem. Germany declares in its council presidency programme that it is seeking to reform the Common European Asylum System in a way that prevents the overburdening of individual states by ensuring a just distribution according to a fair responsibility-sharing regime. This is no new position. Within the last few years member states that are somewhat willing to accept refugees have been pushing for the participation of all members. States like Poland or Hungary are pushing back hard against these requests while border states like Greece or Italy demand help from their European partners.
The years-long debate in civil society and between member states has exposed deeper problems in the European polity. It was always clear that some countries would benefit more from subsidies, policies or the common market than others. But it was believed that in the end in economic matters the EU brought a benefit to all members. It was also evident that the EU had efficient mechanisms to ensure the compliance of the states in these fields. Now we can observe a freeriding tactic in some states in a broader sense. While Hungary and Poland are willing to comply with unfavourable economic policies because they expect an overall economic benefit and penalties in the case of non-cooperation, they are not prepared to follow the rules of law or norms of solidarity within the European community. So far, the EU has no way to ensure the solidarity of all member states. It has also found itself unable to create a way to do so because it depends on the states’ approval for structural reforms.
Even if the EU could find a way to obligate all countries to participate in a common asylum and migration policy it is yet unclear how states want to prevent migration after the asylum process without permanently damaging the Schengen agreement, that Germany calls an indispensable pillar of European cooperation. So far Germany hasn’t presented a convincing proposal to solve this conundrum.
“Rather than proposing policy based on the deadlocked debate of the past years, a complete shift in discourse is in order.”
The pressure on migrants and refugees to relocate within Europe will stay high. Some countries offer asylum to a bigger share of migrants, can provide more financial aid or are already home to family members or bigger Diaspora. On the other side, some countries fail to provide safety, social security or at least human dignity for migrants and refugees. For many the flight from the Horror, they have experienced doesn’t stop when they set foot on European soil. Consequently, a common European migration and asylum policy must also set standards for the treatment of migrants and refugees, the asylum process itself and their education and opportunities.
The presidency’s program clearly identifies some of the core challenges of the debate, but this is also precisely the problem. Rather than proposing policy based on the deadlocked debate of the past years, a complete shift in discourse is in order. Instead of talking about how to refuse entry when evidently no protection is needed, the EU needs to be talking about the reasons for people outside the scope of the Geneva convention to come to the EU in the pursuit of a better life, and how the EU contributes to that. Instead of talking about strategies to attract skilled workers from other countries, which themselves are dependent on those workers, the EU needs to be talking about a legal framework that supports refugees to become skilled workers once they are in the EU. However, to end on a positive note: The EU does propose some valuable policies. Increasing the EU’s resettlement capacities, establishing legal and safe migration opportunities and overturning the failed Dublin 3 system are important steps in the right direction. The question remains: Will the EU be able to follow through on them?
Lara Breitmoser, Florian Lenner, Jakob Rindermann