Foreigners are seen as a danger and their invasion as out of control

By Alain Morice, Le Monde diplomatique, March 2004

Europe blocks right to asylum

Even the traditionally tolerant Dutch parliament voted by a large majority last month to expel 26,000 foreigners without papers to countries such as Chechnya, Afghanistan and Somalia. Supporters of a hardline policy on asylum have found allies in all the European Union governments and are slowly working on ending the right to asylum.

by Alain Morice

REFUGEES at Europe's borders will soon be treated just like other migrants: asylum, in this nervous climate, is being sacrificed to a requirement for selective control of immigration. This approach to the issue is based on questionable principles—asylum is a right under the 1951 Geneva Convention, whereas immigration is discretionary—and stems from the European Union member states' declared intention to question asylum law in order to end the right to asylum.

Growing inequality in democracy and civil order between dominant and dominated countries feeds the European fear of an uncontrolled influx of foreigners. There is also dismay at politicians' obvious failure to welcome and integrate migrants. These worries have prompted governments to block other legal avenues for people in flight, making asylum the favoured route. Many who supposedly profit from asylum risk their lives to reach Europe, and in so doing provide an accidental confirmation of the idea of an unstoppable flow of incomers. This encourages xenophobic electioneering as foreigners (whether or not they are refugees) are seen as a danger and their invasion as out of control (1).

In 1997 the Treaty of Amsterdam made asylum a priority issue in EU migration policy. The EU's ideological and legal machinery, which it has been fine-tuning ever since, has gone through three stages: first, say that pressure at the borders is intolerable; then, contest the merits of asylum applications; and last, because such statements soon reach their operational limits (and incur political cost), get the awkward issue of refugees out of public sight. This subcontraction of asylum leads to strategies of detention in special camps, which threatens the legitimacy of the refugee idea.

The fight against illegal immigration is starting to cost a lot for small returns. It prompts states to manage or tolerate on their territory zones not under common law that are rightly worrying human rights activists (2). In the Spanish enclave of Ceuta in Morocco, 300 asylum seekers are on the streets. The president of the Spanish Refugee Aid Commission said: It's painful to say so, but Spain is hostile to refugees because of government policy. The democratic Spain of 2003 has forgotten the Spain of 1939, when hundreds of thousands of its children fled Franco's repressive regime and settled around the globe (3).

Some countries, such as Austria, question the legitimacy of an increasing proportion of asylum applications, claiming the 1951 Convention criteria are outdated and proposing a new approach no longer based on subjective and individual law but on the political receptiveness of host states (4). Until 2003 France had always advocated a restrictive doctrine: only those persecuted by actual states would be granted refugee status by the French office for the protection of refugees and stateless persons. Claims involving the oppression of women, persecution of minorities, confiscation of property or inter-ethnic killing were grounds for the rejection of an asylum application when the persecutor involved was not a state. France subsequently invented territorial asylum (in a law of 11 May 1998), an idea that the EU has now adopted as subsidiary protection: a reversible, second-rate asylum considered as an exceptional admission to stay and distinct from recognition of refugee status under the Geneva convention.

The 1980s saw the spread of labels such as bogus or economic refugee, meant to stigmatise asylum seekers who were deemed illegitimate. Many applications for refugee status made by economic immigrants must be rejected, wrote the chairman of the French Commission for Refugee Appeals (CRR), André Jacomet, in 1984 (5). Illegal immigrants who stop foreigners already in residence from integrating were castigated. Then came the slogan too much asylum destroys asylum, which in EU language has now modulated into the rise in flows of persons in legitimate need of protection and migrants using asylum channels and procedures to gain access to member states is a real threat to the institution of asylum (6).

After automatically being suspected of cheating, asylum applicants are accused of congesting departments that specialise in examining their requests or organising their expulsion. To direct improper migrants to holding zones while their departure could be organised without further scrutiny of their applications, a 1992 EU resolution introduced the idea of a manifestly unfounded application (used in a French law the following year) and of deliberate fraud (7). This provision, far from checking the influx, caused a build-up of people who, in the absence of any contradictory procedure, were undesirable but hard to expel: for instance, Kurds from Iraq, a country with no international air transport since the 1991 Gulf war.

There is discord among member states over clandestine refugees, especially the lucrative illegal labour market: this has been noted in Italy with Albanian labour-trafficking rings. The Sangatte camp, which French authorities officially placed under Red Cross control for the three years before it closed in December 2002, enabled at least 80,000 refugees to reach the United Kingdom. This could be interpreted as a major contribution to undeclared employment in the UK: everybody knows that refugees with no status help to keep some business sectors in operation. But war was declared on asylum, backed by distressing arguments and methods: keep the refugees at a distance and out of the way.

Keep refugees at a distance: if refugees do have legitimate fears for their safety, then it will be argued that asylum outside Europe would be advantageous, in a place close to their origin and intended to meet their request for protection. The application of nimbyism (not in my back yard) has produced great inventiveness. In accordance with the Schengen convention of June 1990, heavy penalties have been introduced against haulage companies that carry foreigners suspected of attempting fraudulent immigration. The privatisation of controls with civilian staff and the police training of airport check-in staff to identify potential fraudsters have been institutionalised.

Refugee status is now being challenged. In 1999, during the wars in the Balkans, France came up with an old argument, common during the years of Nazi persecutions: the government decreed, to discreet rightwing opposition applause, that giving Kosovo's deported Albanians refugee status would amount to endorsing the fait accompli of Serbian violence (8). There was odd reasoning, blending paternalism and culturalism: people feel better disposed to help reconstruct their country, when the time comes, if they stay near it (9) —the implication was that European countries (not so very far away) are more comfortable with no refugees to look after.

Since 1992 Europe has resorted to the safe country idea, which allows refugees to be sent back to their country of origin or transit country if it is deemed to offer guarantees for their safety. If readmission agreements have been signed, these countries must take back repatriates. These guarantees (which are hypothetical in certain safe countries, where the situation can change suddenly—as with the Ivory Coast, to which France has stopped repatriating undesirable migrants because of conflict) are worth even less if the countries send refugees on to other destinations.

This list is rarely made public. The EU states are struggling to reach agreement, not so much on the safe country principle but, for diplomatic reasons, on a common list. In parallel, a draft EU directive in June 2002 (10) prepared for the concept of internal asylum: before granting protection, a country would check that the asylum seeker could not find a safe place in his own country. Such places could be run, the same text said, by international organisations and permanent authorities akin to a state. What guarantees would a person have if sent back to an unstable or poorly controlled country? (We seem to have forgotten about Srebrenica (11).) But without waiting for its partners' consent, France hastily included the internal asylum concept in its recent asylum law of 10 December 2003.

Poland and the Czech Republic, who are about to enter the EU, cause particular concern because many refugees enter the EU through their borders. In accordance with the Dublin II regulations, which came into force in 2003, the first country an immigrant enters must deal with him. On 22 January 2004 the United Nations High Commissioner for Refugees, Ruud Lubbers, told EU interior ministers of his concern that asylum systems could be overwhelmed. He said: There are new EU states in Central Europe that currently only have 15 or 20 asylum assessors. What will happen if thousands of extra asylum seekers are sent back to them from the inner EU countries? There is a danger the harmonised procedures may simply collapse in the new border states (12). Among other measures, he advocated the establishment of EU reception centres with teams of assessors and interpreters from across the EU, which suggests the EU will align with member states challenging the 1951 convention. Such a move would lead directly to the internment of foreigners in special camps (13).

In February 2003 the British government proposed to assess applications in transit processing centres out of public view; at least, it would assess those who had survived the journey, because it is now clear that death among asylum seekers is a form of regulation. To export the problem, it was suggested that offshore sites should be set up in countries such as Morocco, Turkey, Croatia, Somalia and Iran, the implication being that these are safe countries (14). The UNHCR spoke of the need to share the burden: in late 2002 it launched the Convention Plus initiative, to convey the idea that refugees must, as far as possible, stay close to their country of origin. The UNHCR was interested in the British proposal and tabled an enhancement: economic refugees or improper asylum seekers would be put in closed centres common to member states, located in the EU, most likely in the accession countries (15).

The UK proposal was rejected at the Thessaloniki summit in June 2003; instead, EU members decided to favour readmission agreements with countries of origin. In November Lubbers, who has blown hot and cold on the issue, sternly warned EU members against elaborating a common asylum policy that did not guarantee human rights (notably over safe countries). But despite his declarations, the UNHCR seems to be moving away from its mission to protect people in danger and resettle them, and gradually putting itself in the service of EU policies to delocalise asylum (16).

Placing refugees out of the way demands the creation of special camps. The concepts of safe countries, readmission agreements and transit processing centres all involve group-based approaches; from this flows a logic of exception, based on collective confinement and perpetually renewed, that designates people by category. The 1951 convention extended eligibility for asylum to any person with a well-founded fear of being persecuted because of origin or affiliation (17). The new European doctrine, backed by the UNHCR, states that there are people who, because of their affiliations, cannot legitimately request asylum on European territory. The ideological operation is formidable: it designates groups by their origin and confirms its raison d'être. This policy will generate anti-refugee racism about certain nationalities or ethnic affiliations, as already exists in Italy over Albanians or in France against Romanian Romas.

There is another problem with a system of international relations that consolidates subcontracting and camp-based policies. Far from distancing us from imperialism, this returns us to it. The admission of new member states has already occasioned unsavoury dealings, with the EU entry ticket being traded for goodwill in helping to check migration: this is especially true of Poland, the first country with which the Schengen Treaty signatories concluded a readmission agreement in the 1990s. But there are now worrying prospective arrangements for haggling over and globally dividing up labour, whether they pertain to such agreements or to asylum seeker holding camps.

Behind the smokescreen of development aid, to be traded with indebted countries for their cooperation at source in the fight against immigration, there are corrupt leaders who are often the only beneficiaries of such aid, the reinforcement of the patronage systems left by colonisation and, ultimately, exacerbated tensions between countries who claimed to have united against the imaginary enemy: refugees. An alarming novelty is the appearance of the idea of the country of illegal emigration, an affront to the Universal Declaration of Human Rights, which proclaims the right of any person to leave their country (18).

What about the division of labour? Besides intensive farming, mining, child exploitation and tourism, why not invent new specialisations which will be lucrative today but ultimately cause hunger, such as the remote management of delocalised detention centres, with technical advisers and Western logistics support?

The signs are there. In September 2003 EU commissioner Antonio Vitorino, seeing the talks on readmission agreements were bogged down, wished to grant third countries immigration quotas in return for their goodwill in accepting back clandestine migrants who had started their journey on their territory or were in transit through it. He was thinking of the unqualified labour Europe needs, and said the idea had originated in Italy, where it was already in practice (19).

On 8 January 2003 the Swiss and Senegalese governments signed a transit agreement; Senegal undertook to receive and redirect all African nationals that Switzerland expelled or banned from its territory; and identify their state of origin. Article 15 of the protocol referred to special services, their cost to be settled by agreement between the parties. This innovative deal would have led to denials of justice had it not collapsed amid the outcry sparked (for different reasons) in Dakar and among Swiss human rights activists. For how long will such denials be deferred?

Notes

(1) On the meaning of the rhetoric of jeopardisation, see Didier Bigo, Sécurité et immigration, Cultures & Conflits, No 31-32, autumn-winter 1998.

(2) See the map Les camps d'étrangers en Europe, Plein Droit, No 58, December 2003; and the Migreurop website: http://pajol.eu.org

(3) El Païs, Madrid, 2 January 2004.

(4) The inaugural document of Austria's EU presidency in 1998. Last year, a document suggesting that the UK was considering reneging on the convention forced its government to issue a denial: The Guardian, London, 6 February 2003.

(5) In the preface to Frédéric Tiberghien, La protection des réfugiés en France, Economica, Paris, 1984.

(6) Statement by the EC, 26 March 2003, cited by Patrick Delouvin in Europe: vers une externalisation des procédures d'asile?, Hommes & Migrations, No 1243, May-June 2003.

(7) Resolution by EU ministers in charge of immigration, London, 30 November-1 December 1992.

(8) See Quel asile pour les Kosovars?, Plein Droit, No 44, December 1999. On 12 April 1999 a diplomatic wire urged French representatives to select refugees carefully, demanding that they should have a relative in residence.

(9) This is so untrue that Kosovars prompted the Sangatte camp to be set up in September 1999, to stop these temporary refugees roaming the streets of Calais.

(10) Nearly two years later the directive has still not been adopted, a sure sign of disagreement between member states.

(11) See Daphné Bouteillet-Paquet, Un droit d'asile qui s'effrite, Plein Droit, No 57, June 2003.

(12) UNHCR press release, 22 January 2004.

(13) See (2).

(14) Claire Rodier, Les camps d'étrangers, nouvel outil de la politique migratoire de l'Europe, Mouvements, Paris, No 30, November-December 2003. See also http://pajol.eu.org/ and http://www.statewatch.org/

(15) Speech by Ruud Lubbers to an informal meeting of interior ministers, Veria, 28 March 2003.

(16) This policy shift prompted condemnation of the United Kingdom and the UNHCR by Amnesty International, which judged it unlawful and unworkable.

17) Race, religion, nationality, social group and political opinions are the criteria of the 28 July 1951 convention.

(18) Les Quinze ne sanctionneront pas les pays d'émigration illégale (EU will not penalise countries of illegal emigration) was a Le Monde headline on 23 June 2003.

(19) Le Monde, 3 October 2004.