Cracking at the Seams – The Erosion of the Common European Asylum System

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The Common European Asylum System (CEAS) was conceived as a manifestation of the assumption that human rights are the foundation for the operation of the Union. As problematic as the practicalities of the system are today, the challenge to the normative underpinnings, which are disappearing due to transnational regulatory networks’ influence on policy, is worse. This effect can be countered only through internal legislative changes fostering secure stays for all migrants.

Europe, the Idealist vs. Europe, the Pragmatist

The establishment of the EU was a game changer in international and human rights law. The transformation from economic cooperation to the desire for an ‘ever closer union,’ with common, European ideals, ranging from trade to social norms, was epitomized by the inclusion of the Charter of Fundamental Rights in the Lisbon Treaty. The CEAS was created to streamline rules, abolish the pre-existing arbitrariness of asylum laws, and create minimum standards compatible with human rights commitments. A counterweight to restrictive immigration policies – in response to the influx of refugees into Western Europe in the 1990s – the CEAS fused humanitarianism with human rights. Subsidiary protections emerged, ensuring that even those not eligible for asylum would be provided with needed assistance.

As it stands today, the CEAS is far from perfect and is overdue for change. More than its practical issues, it is the assault on its normative foundations that is troublesome. Human rights within immigration law are being put on the backburner across the Member States (MS) and on the EU level. The blame can be laid in part on what is known as transnational regulatory networks, which showcase the disaggregation of sovereignty within the modern state: Instead of engaging internally with other branches of government to provide effective governing, agents of one branch engage with their counterparts in other countries, devising ‘solutions’ that allow for action removed from judicial scrutiny.

This not only causes entrenchment of the disaggregation, but allows for its exportation to the EU level. For example, when Germany sought to manage the 2015 refugee influx through EU-wide means, the conversation shifted quickly from one of solidarity and redistribution of responsibility, to one of securing borders and diminishing smugglers’ incentives. This was achieved mostly thanks to such networks as the Visegrad group, who aggressively pushed a security discourse, and the collaboration of Western Balkan countries with EU powers such as Austria to close the Balkan Route.

While these processes pose far-reaching questions of legitimacy and democracy, they are most troubling in the normative sense, as the disaggregation permits for the cooptation of humanitarianism, at the expense of human rights. When the EU scaled down their rescue operations in the Mediterranean to prevent a ‘pull factor,’ European politicians justified it by stating that otherwise people would drown in a futile attempt to reach the EU. That these people were denied the right to seek asylum was not a consideration.

Harder, Faster, Better, Stronger?

Externalizing the problem may be the easy solution in political terms, but it does little on the ground. A tougher stance on security and border issues and fast deals, such as the EU-Turkey agreement, punish those who need help and encourage humanitarian crises. This in turn allows further exploitation of humanitarianism to hollow out human rights protections, and provides the transnational networks with more power to decide on the norms to be promulgated.

The solution then must have an internal component, as noted by my colleague. This internal component should create legal ways for those seeking protection to enter the EU. The system must be able to cope with the fact that at least some of the MS function as ‘immigration societies’. – So long as the EU remains a unit, all MS must realize that they cannot escape some level of heterogeneity within their society, whether through immigration or redistribution. As for the former, one way to counter the false idea of ‘fake refugees’ is to create easier pathways for long-term, legal immigration for all types of migrants. Students, low and high-skilled laborers, temporary migrants, and refugees all need a viable option to make their stay in the EU secure; otherwise, the asylum system becomes the fallback option.

Would that cause difficulty in the short run for the EU? Yes. The big boogeyman of impacted labor markets rears its ugly head in such situations. What seems forgotten is that societal welfare is not just premised on greater economic production, but on sustainability of the overall system. Low birth rates, lack of labor supply in specific industries, and the need to carry the social safety net has caused many MS to relax visa rules for highly skilled workers. Removing bureaucratic barriers relating to programs that train both high- and low-skilled workers, and barriers regarding the ability of non-EU students trained in the EU to stay, could alleviate these sustainability issues.

Relaxation of visa and asylum laws to permit legal access to the society would promote better social and economic integration, as, despite xenophobic arguments to the contrary, culture wars are waged solely in sensationalized headlines. The impetus for a common EU action in this area is lacking; it needs to be pushed harder. EU level policy makers must show the MS that if they wish to continue to receive the benefits of a united Europe, they will have to either create policies that accept ‘desirable’ immigration on a national level, or face policies of redistributing ‘undesirable’ asylum seekers from the EU level. Past instances of success may be a means of persuasion: for example, in the early 1990s, when Bosnian Muslims started coming to Austria, there was plenty xenophobia to go around.1 [FN 1: Franz, Barbara, Uprooted and Unwanted, College Station (Texas A&M University Press), 2015, p. 132-139] Yet, about two-thirds of these same refugees stayed and are now accepted as a firm part of society, due to, inter alia, a relaxation of visa laws.

Would such policies push the system to the brink? Possibly. But without any push, the system and the ideals behind it will be no longer sustainable or credible. If these kinds of legal, systemic solutions were pursued, they could help stem the normative shift and counteract some of the negative effects of transnationalism. This goal cannot be achieved without citizen engagement and political leadership working in unison. The results of the recent French election show that Europe’s next generation is still very much united behind those ideals. What remains to be seen is whether their political leaders follow suit.

ABOUT THE AUTHOR

Alma Stankovic is an attorney at law in the states of California and New York as well as the District of Columbia. She has policy and litigation experience, having worked in various NGOs dealing with a broad spectrum of issues affecting immigrants and persons living in poverty in the United States. She holds a Bachelor of Arts Degree from the University of California Los Angeles in Political Science and a Juris Doctor from the University of Southern California. She is currently a Project Researcher and candidate for a PhD in International Law at the University of Graz, where her work focuses on transnational migration governance, human rights, and refugee law.