The Universal Declaration of Human Rights sets out the fundamental right to seek and enjoy asylum. However, the controversial public image of immigration currently challenging governments across the EU, coupled with asylum being seen as a problem and another aspect of irregular migration, means that states are neglecting to meet their basic international obligations.
Since the Treaty of Amsterdam, the EU has had competence to legislate in the field of asylum and has recently amended directives in three key areas, establishing: common asylum procedures; common reception conditions; and standardising the approach taken by states when determining refugee status. This should mean that asylum seekers experience common, uniform procedures across the EU, thus promoting consistency and fairness in decision-making. However, there are a number of significant obstacles which undermine common procedures and challenge the individual’s right to seek and enjoy asylum.
The reality is that the number of asylum applications into the EU has decreased dramatically since its peak a decade ago. The vast majority of the world’s asylum seekers are confined to regions of origin in highly precarious situations, as we can see with the Syrian refugee camps. The numbers arriving in the EU are certainly manageable – in the UK the figure for applications in 2013 was 23,000.
Yet there has been a political obsession with reducing the headline number at all costs – mechanisms such as interception at sea, expedited procedures, routine detention and carriers’ liability have made it almost impossible for applicants to find legal mechanisms of travel in order to claim refugee status.
Furthermore, political negotiations with neighbouring states have made it increasingly difficult for applicants to reach the EU in order to make their application for asylum. EU policies, while not actively supporting interception at sea, have encouraged such interception and deterrence strategies by rewarding neighbouring states for their strong border control. In many cases this strong border control denies applicants the protection they would obtain in the asylum process had they reached the EU.
In turn this has led migrants to take drastic and dangerous steps to avoid being detected, hence we see increasing numbers of migrants drowning in the Mediterranean, many of whom may have credible asylum claims.
On arrival a culture of disbelief sees most applications rejected at first instance and, notwithstanding the enormous reduction in free legal advice, a comparatively high success rate in asylum appeals. The disparate recognition rates for refugees across the EU also indicate that in some countries there is almost no chance of being recognised as a refugee even when the applicant is able to access the asylum procedure.
These directives should ensure that all EU states are free from persecution, respecting the obligation of non-refoulement and offering a common standard of refugee detection and protection. But with some states failing to meet even the most basic needs of applicants, it places them at risk of refoulement.
Further, the recently amended Dublin Regulation attempts to prevent secondary movement by providing that states can return asylum seekers to the first EU country of arrival – that country should then examine the application in compliance with the common standards. However, the difficult issue remains of the return of asylum seekers to countries such as Greece, where their case is unlikely to be heard and where there is almost no state assistance during the claim.
In terms of the future direction of refugee protection, it must be acknowledged that the vast majority of the world’s refugees are not receiving the protection envisaged by the 1951 Refugee Convention or by international human rights law. Initiatives have been discussed at international level to find a way forward, for example through the use of mechanisms to identify refugees in the region of origin coupled with resettlement in safe states.
Yet resettlement – as the Syrian situation illustrates – remains an international embarrassment with states, including the UK, unwilling to take more than a handful of refugees and cherry-picking those that appear most suitable for integration.
Tony Blair and others have suggested migrant reprocessing centres outside the EU which could detect those irregular migrants with legitimate claims to refugee protection, but again this passes the burden on to the less-developed world while running the risk of European states picking the most desirable applicants.
Ultimately, there is only one way forward if we are to respect the fundamental inalienable rights of all human beings and that is to do much more in countries and regions of conflict – identifying root-causes of refugee movement and supporting refugee determination procedures in less developed countries.
Contrary to public perception, research shows that most refugees would prefer to stay in their region of origin.
However, this is not always possible and the EU and other developed states should be prepared to do much more in meeting their obligations under refugee and human rights law to identify and protect those in greatest need. A failure to do this will ultimately have dramatic repercussions both for the individual and for global peace and security, as the wealthy west becomes ever more insulated from the needs and aspirations of the rest of the world.
Dr Helen O’Nions is a senior lecturer at Nottingham Law School, founding member of its research group the Centre for Conflict, Rights and Justice, and editor of Nottingham Law Journal