Since President Donald Trump issued an Executive Order on 27 January 2017 entitled ‘Protecting the Nation from Foreign Terrorist Entry into The United States’, traditional media outlets and social media have been in a frenzy of activity. Protests have taken place around the world and there have been reports of dramatic scenes at airports. Indignation against the Executive Order was understandable: although couched in the language of prevention of terrorism and protection of national interest, the discriminatory and arbitrary character of the measure was apparent. Indeed, the Executive Order suspended the issuance of ‘Visas and other Immigration Benefits to Nationals of Countries of Particular Concern’, namely Libya, Iran, Iraq, Somalia, Sudan, Syria and Yemen. Moreover, the Executive Order suspended the U.S. Refugee Admissions Program (USRAP). Such discrimination against Muslim-majority countries and arbitrary refusal of refugees rightly appalled politicians and civil society alike in countries around the world – especially when considering this measure in the context of all Donald Trump’s initiatives, statements and background of a discriminatory and bigoted character. This original Executive Order has been in the meantime suspended by a US federal judge, following a string of lawsuits and on the basis of a range of legal grounds. Yet, a revised, softer version has been issued on 6 March 2017, which predictably prompted immediate academic criticism and judicial actions. And whilst most people – including myself – may find these orders abject measures and a violation of international and human rights law, including children’s rights and refugee rights, I cannot help but looking around me and wondering how much better Europe is faring in dealing with its borders, its migration policy, and its international protection obligations.
Looking in the mirror and dealing with the reflection
In the midst of these events, a question kept cropping up in my mind: how different are we, in Europe, really? In Calais, a wall has been built with British funds. In Hungary, a wall prevents refugees from reaching the country and seeking asylum, and all asylum seekers are to be automatically detained, despite not having committed any criminal act. In Greece and Italy, ‘hotspots’ aim to ‘assist frontline Member States which are facing disproportionate migratory pressures at the EU’s external borders’, but the system has been accused of instead ‘abusing, misleading and expelling’. Refugees are reported to be currently dying of cold across Europe. EU resettlement programmes have been accused of cynicism and of being disgraceful. Australian-style proposals to ‘offshore’ EU asylum have been rightly labelled as ‘mass expulsions’ and ‘fiscally irresponsible, morally bankrupt, and increasingly unsustainable politically’. The EU-Turkey agreement to resettle thousands of ‘irregular migrants’ reaching Europe has been widely criticised as a source of human rights violations, and illegal and ineffective. The cooperation agreement with Libya has been criticised for endangering human rights. After only resettling 350 children from Calais to the UK out of the 3,000 expected, the UK will end the Dubs scheme. Europe’s own visa policies have long been accused of being inherently discriminatory. The list is endless.
Other commentators have not failed to notice this shocking state of affairs in our own backyard: Nikolaj Nielsen, for example, writes about European Union’s hypocrisy. This is in no way downplaying the seriousness of Donald Trump’s Executive Order – it is clear that it is a blunt instrument, with no appropriate reasoning sustaining it. And this criticism does not aim either at equalising the way European leaders and Donald Trump deal with such matters – evidently, there are significant differences in form and content. Nonetheless, that does not make European policy unproblematic. In fact, there is much to be done to render European law and policy more humane.
Looking beyond the mirror
This is not to say that European organisations and countries have ignored their human rights and international protection obligations completely. So, credit where it is due. Germany has taken more than its fair share of refugees in the European context. European Union institutions have pursued relentlessly a refugee relocation ‘burden-sharing’ deal on the basis of the principle of solidarity. The European Commission, in particular, has frequently put pressure on Member States to act upon their solidarity obligations in the field of migration. Furthermore, Advocate General Paolo Mengozzi, in an Opinion to the Court of Justice of the EU, has argued in favour of public authorities in the EU having to issue visas on humanitarian grounds to fulfil their international protection obligations. Although the Court of Justice eventually decided against the existence of this obligation under EU law, the debate that this case prompted was very positive. Nonetheless, economic pressures, populist movements across Europe and lack of political solidarity between European countries are preventing us from fulfilling our obligations in a comprehensive and timely fashion. Crucially, any progress we have made on this front is constantly under threat.
So what is preventing us from doing much better? The usual: lack of political will and leadership. As there is no magic solution to improve those, it is important to discuss other possible, more immediate solutions. Although there may be plenty of room for improvement of the Common European Asylum System (CEAS), the greatest causes for concern seem to relate to the ways the system is (mis)implemented. For example, the Dublin regulation mechanism does allow for countries to process asylum requests even when they are not the EU member state the claimant first reached (as asserted by the Court of Justice of the EU in NS v SSHD); yet, the Commission has proposed resuming transfers to Greece, ignoring the extremely poor reception conditions in Greece and the need to pursue ‘burden sharing’ policies instead. So, the Dublin regulation mechanism needs to be applied more sensibly. The current CEAS could be complemented with greater economic support for EU member states accepting to process applications of asylum seekers who first reached the EU through another member state – not that they should be doing it for economic benefits alone, as humanitarian and legal grounds should suffice, but greater economic support could help some member states become more supportive of greater application of the principle of solidarity amongst EU member states.
Moreover, if we are not to throw away what CEAS has achieved and simply improve the way it is implemented, we need to ensure that any implementation measure is compliant with the highest human rights standards. Working closely together with the Council of Europe and ensuring absolute respect for the minimum standards established by the European Court of Human Rights is essential in this context. Although accession by the EU to the European Convention on Human Rights is on hold since the Court of Justice of the EU issued its Opinion 2/13, there is still plenty of room for close collaboration with the Commissioner for Human Rights and the other Council of Europe bodies concerned with asylum related matters. This should most likely lead to the suspension of the agreements with Turkey and Libya, mentioned above. Although much more contentious, perhaps the EU should also consider a much stronger stance with regard to member states ferociously undermining asylum-seekers’ right to international protection, such as Hungary (discussed above). As a last resort, this could mean triggering Article 7 of the Treaty on the European Union, which could lead to the suspension of the voting rights of the member states in question in the European Union bodies. Admittedly, this is the least palatable measure, especially considering that this provision has never been used and that we are living in the midst of Brexit. The EU would perhaps not wish to poke the pride and sovereignty of any member state, in an attempt to avoid more exits. And yet, in the long run, tolerating club members that are in many respects not worthy of membership to the club only serves to denigrate the reputation of the club itself.
Whether we call it a ‘crisis’ or not, the truth remains that the right to international protection of thousands, if not millions, of individuals is being violated. The EU and its member states need to act swiftly. Focus and resources should be redirected from protecting ‘Fortress Europe’ to safer and more human rights compliant alternatives, such as allowing refugees to fly away from persecution and reach Europe through resettlement programmes. The causes of refugee movements should also be addressed more forcefully, by tackling head-on military conflicts and humanitarian crises pushing people out of their houses. None of this is to soften condemnation of Donald Trump’s immigration ban in all its ugliness. Yet, it is essential that Europeans across the whole continent remain alert and engaged: we are failing in our human rights and international protection obligations as well. Perhaps not to the same extent. Perhaps not so blatantly, arbitrarily or idiotically. But still, we need to do a lot more for all refugees in Europe and those trying to reach Europe, if we wish to be able to criticise other countries with a clear conscience. So, whilst remaining united and active against any measures such as Donald Trump’s immigration ban, let us keep working for a better deal for refugees knocking at our own door as well. Donald Trump’s immigration ban is a massive wake up call to all of us on how human rights anywhere are so fragile. To make it worse, Donald Trump’s extreme right-wing views are offering an extra boost to the already growing Europe’s own extreme right wing movements. Greater humaneness across all policies must be the European answer. Individuals and NGOs around the world have already showed us the power of their voices. Now political leaders across Europe need to also do the same – and in actions, not just words.
Nuno Ferreira is a Professor of Law at the University of Sussex. A previous and shorter version of this blog post has been published in the Forced Migration Forum on 6 March 2017, and can be found on https://forcedmigrationforum.com/2017/03/06/trumps-immigration-ban-and-europe/. Many thanks to Carmelo Danisi, Moira Dustin, Nina Held, Paul Statham and Alex Aleinikoff for their comments on previous drafts.