Can Europe Make It?

Kafka on the shore: European asylum law and the slow death of due process

These are not simply draconian measures to curb refugee movement towards Europe, but populist ideals presented to the European Parliament as an authentic means of terminating its “refugee crisis”.

Sophie Capicchiano Young
16 October 2016

The front cover art for Kafka' The Trial 1st edition, complete with dustjacket written by Franz Kafka. Wikicommons. Some right reserved.In Franz Kafka’s ‘The Trial’, Josef K. (an allegorical personification of the author) finds himself arrested, charged and on trial for a crime of which he knows nothing, without any defence. The undermining of presumed legal norms by the two “unidentified agents from an unspecified agency” and the “Committee of Affairs” leaves K. in the impossible position of a guilty man who does not know the nature of his crime.

Europe’s acrimonious setting aside of legal norms of due process has constructed a Kafka-esque reality for asylum law. Europe is incrementally separating itself from the Refugee Convention and is in turn, redefining its own parameters for establishing a humanitarian program that precludes a vast number of asylum applicants from requesting international protection.

First coming into force in between 1997 and 1998, the Dublin Convention established the criteria and mechanisms for determining which Member State bore the responsibility for examining an application for international protection under the Refugee Convention.  In 2003, the Dublin Convention was replaced by the Dublin II Regulation, which was again amended in 2013 to create the Dublin III Regulation. I will not discuss the minutiae of the Dublin system’s history here.

However, in early 2016, the European Commission published a communication to the European Parliament and the European Council proposing a significant overhaul of the Dublin System.  The communication, “Towards A Reform Of The Common European Asylum System And Enhancing Legal Avenues To Europe” comprised a series of five priority actions that would reinforce the current Common European Asylum System (“the CEAS”); the body of law regulating asylum law in the European Union, by essentially enacting the Dublin IV Regulation. The Communication proposes a series of highly controversial measures to curb movement towards Europe which, if enacted, would significantly erode due process under the CEAS.

Whilst all proposals contained within the Communication must first pass through the European Parliament, the recent political trend of leaning heavily to the right indicates that these are not simply draconian measures to curb refugee movement towards Europe, but populist ideals presented to the European Parliament as an authentic means of terminating its “refugee crisis”.

The economic beneft of displacement

Quite possibly the most unattractive feature of the Communication is its promotion of the refugee crisis as an opportunity for Member States to exploit economic value from those in need of international protection. The Communication acknowledges that the current European asylum and migration policy places a disproportionate responsibility on certain Member States, which in turn, “encourages uncontrolled and irregular migratory flows”. This system would be replaced by a “fairer system which provides orderly and safe pathways to the EU for third country nationals in need of protection or who can contribute to the EU's economic development.”

The Communication states that in order for Europe to improve its management of migration, it must “become better at attracting the skills and talents that we will need in the future, and at reaping the benefits of migration by ensuring effective integration and participation into the host society of all - refugees or legal migrants.” The notion that the transfer of a refugee to a host member state should respond to the economic needs of that member state is deeply unethical at best and profoundly exploitative at worst. The identification of a durable solution for a refugee, including his or her relocation, should not under any circumstances take into account the economic advantage that the refugee would afford the host Member State. 

The fact that the European Commission is entertaining the idea of shifting the goalposts of resettlement so dramatically to redefine the principles of its humanitarian programs, demonstrates a concerning trend of moving refugee resettlement away from the Refugee Convention and into a distinct European reinterpretation of humanitarian principals where economic gain is a principal determinant.

The ‘corrective fairness mechanism’ 

The “corrective fairness mechanism” is the term assigned to the Commission’s proposed distribution key, which would be enacted as an amendment or supplementary policy to the new Dublin Regulation. The Communication proposes that an alternative to the Dublin system can be found in the adjustment of allocation under the distribution key based on “certain circumstances”. These circumstances are not discussed further. 

The “corrective fairness mechanism” would also allow the EU to make adjustments to the distribution key to enable the relocation of any applicant with a reasonable likelihood of being granted international protection, and not just of nationalities with a recognition rate of at least 75%.  The specifics details concerning how this type of allocation would be triggered are not discussed further in the Communication, nor are the criteria for “reasonable likelihood” disclosed.

This may, prima facie, appear not especially problematic. The European Union would monitor and regularly update country of origin information in order to maintain a contemporaneous list of safe countries.  However, country of origin information published by the Danish Immigration Service’s 2014 Fact-Finding Mission Report suggested that Eritrea should be deemed a safe country of return. Accordingly, the recognition rate of Eritrean asylum applicants in the United Kingdom dropped dramatically from a 73% approval rate in the first quarter of 2015 to 34% in the second quarter.

Following the publication of the report, Professor Gaim Kibreab, one of the report’s interlocutors, requested that his name be disassociated with the report as he was “quoted out of context” and his heavily edited version of the report was disregarded in final publication.  This complaint led to the publication of an updated report several months later. Jens Weise Olesen and Jan Olsen, the two veteran researchers whose work seemingly provided the basis for the report subsequently resigned amid claims that their research did not at all suggest that Eritrea should be deemed a safe country of return. Their work had been “simplified” and “distorted”.

Another problem with the corrective fairness mechanism is that certain criteria – family or dependency links, the best interests of the child, and possession of a visa or residence permit – would prevail over the application of the corrective fairness mechanism and could result in a corresponding deduction from a Member State’s per capita allocation. This means that the corrective fairness mechanism would not afford consideration to an applicant’s proficiency in a particular European language or whether an applicant’s professional qualification would be recognised in a particular Member State. Under the proposed model, an applicant, for example, who had a wife and child whose asylum applications preceded his, and who were resettled in Sweden under the corrective fairness mechanism, would be resettled in Sweden despite his proficiency in French and his degree that is recognised in Belgium.  His allocation would be assessed based on the presence of his family in Sweden rather than on his ability to generate income to support his family. Additionally, he and his family would not be able to move to Belgium as the distribution key does not allow for secondary movement.

A policy of returns

The communication alludes to the introduction of a new and rigorous policy of returns under which the Member States of first application would carry out a “safe country of return” assessment.  This would be done to facilitate “speedy return” of applicants whose country of origin was designated as ‘safe’ by the EU. 

This proposal is fundamentally flawed in two ways.  Firstly, as discussed in section 2, it allows the European Union to unilaterally designate states as safe or not safe irrespective of conflicting evidence from the international community. The absence of clearly defined criteria, by which Europe would assess a state’s suitability for return of asylum seekers, is cause for serious concern.  It implies that countries of origin that are not recognised by the European Union as conflict zones would ipso facto be designated as ‘safe’, meaning asylum applications based on individualised persecution would not be subject to the refugee status determination and so those individuals would be subject to refoulement without due process.  Under this model, LGBTI persons would be immediately returned.  Applicants whose claims are based on political persecution would be immediately returned. Applicants who have suffered FGM or have suffered forced marriage would be immediately returned to their countries of origin. 

This proposal would, if affected, return thousands of applicants to certain persecution and/or death. Applicants would not have the benefit of legal recourse at any stage of their application process, as their “speedy return” would be affected immediately by the Member State responsible for the refugee status determination.  Conversely, applicants from countries of origin recognised by the European Union as conflict zones or with a recognition rate of over 75% would be given due consideration by the receiving Member State despite perhaps having a less worthy claim to refugee status than an applicant from an unrecognised war zone.

In doing this, the European Union imagines that it is not, strictly speaking, affecting refoulement.  It believes that it effectively steers clear of its international obligations under the Refugee Convention by restricting access to the asylum procedure for a significant number of applicants at a very early stage of arrival onto European territory. 

By doing this, potential applicants are restricted from entering the asylum process altogether rather than being explicitly denied refugee status. If they have been subject to a refugee status determination, they cannot be recognised as refugees and therefore the European Union cannot be accused of conducting refoulement.

Rather, the European Commission aims to classify these arrivals prima facie illegal migrants and therefore subject to return to their countries of origin without any opportunity to claim asylum at any stage. This is of course a clandestine tactic to reduce the number of refugees that are accepted onto European territory and a tenuous hold on a Black letter law interpretation of its obligations under the Refugee Convention. 

However, if Europe continues its proverbial continental drift away from the Refugee Convention and continues to flout international standards of humanitarian law, it will be in an incrementally stronger position to rewrite its own draconian asylum laws, which will ultimately lead to admission of an inconsequential number of refugees and a robust policy of refoulement.

The new face of EASO

Under the proposal, EASO’s mandate will be expanded to include powers to implement policy and play a “strengthened operational role” to develop “targeted actions”. These targeted actions include a new quasi-judicial role, which would see EASO act as tribunal of both first instance and appeal.  The communication provides that the EU could:

[T]ransform[…] EASO into an EU-level first-instance decision-making agency, with national branches in each Member State, and establishing an EU-level appeal structure.

The creation of a tiered tribunal system would mean that despite Member States retaining the authority to determine refugee claims, any appeal of those decisions would be referred to a central European judicial entity. This does not appear prima facie problematic until one considers that those applicants who would theoretically wish to have judicial recourse would have already been subject to refoulement. As outlined at section 6, Member States will be supported by the European Commission to enact “speedy” returns of all applicants whose profiles do not comply with the pre-approved country of origin list. This means that those who are not recognised by Europe as citizens of established conflict zones will be subject to refoulement without the opportunity to go through the process of a refugee status determination.

Also of grave concern is the implication that the decisions of the tribunal will be final.  Although the Commission proposes a two-tiered system comprising a court of first instance and a court of appeal, there is no indication that decisions by the court of appeal would be subject to appeal to a higher European court; for example, the European Court of Human Rights. It is not, in this case, difficult to foresee that the statute of the court would invoke a privative clause to exempt judicial review of its decisions, by denying higher European courts their supervisory judicial function.

In conclusion

The Commission proposes a new set of rules pertaining to judicial procedure, which would have a profoundly negative impact on rule of law in Europe. Under the European Commission’s plan to introduce a new set of rules on admissibility, the use of accelerated border procedures, the treatment of subsequent applications, and the right to remain in the territory, due process in European asylum law will become obsolete.

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