Thousands of refugees continue to hope that the border into Macedonia from Greece will open, but northward routes remain closed. Their fate for now is uncertain.
But after the European Union and Turkey agreed a deal last week to solve the migrant crisis, it is clear that almost all new refugees who cross the Aegean Sea to Greece will be sent back to Turkey.
At much cost and at a high political price, Europeans are now transferring responsibility for protecting refugees to states beyond E.U. borders. Critics call it a disreputable deal with an autocratic regime. The individual’s right to asylum has become nothing more than empty words, they say.
The European asylum system, which before the refugee crisis was praised as the best and most humane in the world, is now only a pleasant memory.
This is the pessimistic view of what the European Union is currently doing, and it is justified. Governmental leaders such as Hungary’s Viktor Orbán will never be satisfied — they will demand tougher measures as long as there are refugees wandering on European soil. The Hungarian prime minster reiterates that he won’t listen to more sermons from the “horde of diehard human rights proponents.”
Some U.N. refugee officials secretly hope that Europeans will finally bring some order to the chaos that they themselves helped to create.
But one can also take a more hopeful view of the trade-off with Ankara, and not only because things could have become much worse. A more optimistic appraisal is suggested by experiences in other crises, including the fight over the euro or Britain’s potential withdrawal from the 28-nation bloc.
There as well, the initial response was that the situation was horrible and would ultimately cause the demise of the European Union. But whenever even the faintest trace of cooperation disappears — and death knells toll for the “Community of 28” — the most important protagonists come together for a grand rescue.
And behold: Freed from unnecessary ballast and excessive claims, the European Union has up to now emerged from these conflicts even stronger. It is quite possible that the refugee crisis will also take such a turn and give rise to a functioning European asylum system that does a better job of protecting refugees than the current chaos.
Surprisingly, representatives of the United Nations refugee agency make this same argument from their base in Geneva. Of course, they express reservations regarding the deal with Turkey — that’s their job as guardians of the right to asylum. And it’s possible that everything could still go wrong.
But some U.N. refugee officials secretly hope that Europeans will finally bring some order to the chaos that they themselves helped to create.
Last January, when tens of thousands of migrants were heading northward week after week from Greece, one U.N. refugee official said the European Union must protect its external borders and “can no longer allow asylum seekers to choose a country on their own.”
The U.N. official requested strict anonymity in order to speak openly.
“Europeans have stretched their common asylum policy too far,” the official said. “With the support of the courts, they have sometimes overloaded it with human rights and thereby endangered its acceptance.”
The same criticism can be heard at the European Union in Brussels, in the halls of the government in Berlin and in the offices of German asylum judges.
“Our European laws on asylum only work when there is good weather,” said a high-ranking E.U. official. “It is doomed to fail when suddenly more than a million refugees seek protection.”
And a renowned, left-leaning German judge speaks of an “excessively idealistic body of (asylum) law,” which threatens to be overwhelmed by globalization.
Not so long ago in 2013, champagne corks popped in Brussels as E.U. member countries celebrated “the world’s most perfect asylum system.”
They had just passed a new set of asylum laws that arranged everything down to the finest detail — arrival and registration, initial reception and provision of social services, and finally the return of rejected applicants.
Then came countless regulations in dozens of guidelines and decrees, altogether comprising almost 800 pages of small print. Jan Bergmann, an administrative law judge and asylum law expert in Stuttgart, calls this “deluxe law.”
It was a huge change from the past patchwork of European asylum regulations.
Until the end of the 1990s each country could shape its asylum laws as desired, though all E.U. members were obligated to uphold the Geneva Refugee Convention and European Convention on Human Rights.
But the closer E.U. countries drew together, the more disturbing the differences became. The idea of a common European asylum system was born, and national asylum policy was raised step by step to a communal level.
A beginning was made in 1999 with the Amsterdam Treaty. Ten years later, the Lisbon Treaty sped up developments.
What is not widely known and sounds almost incredible in view of the bitter controversy now raging in Europe is that today the asylum system is almost totally dominated by E.U. law. All 28 countries adhere to the same minimum standards for receiving and recognizing refugees, as well as for conducting the asylum process.
And there is no right to select a desired country; the Dublin decrees of 2003 and 2013 specified that E.U. countries where refugees first set foot are responsible for registering and evaluating asylum applications.
But since the very beginning, the asylum system suffered from grievous flaws. None other than Greece and Italy — two of Europe’s poorest countries with incompetent administrative systems — were tasked with monitoring Europe’s external borders and carrying out almost all asylum procedures.
Moreover, there was no legally binding distribution for new arrivals. Because no one wanted to be obligated to fixed quotas, the lack of fair burden sharing in accordance with laws has remained the Achilles heel of the asylum system.
Admittedly for the first time in its history, the European Union decided in fall 2015 on an obligatory distribution of 160,000 refugees who had arrived in Greece and Italy.
The European Union cannot continue to avoid a distribution of burdens, simply because it might be too complicated and a few states are causing problems.
A majority of members agreed to the complicated system, but Slovakia and Hungary subsequently submitted a complaint against the requirement to the European Court of Justice. A verdict has not yet been issued. Up to now, not even 1,000 of the asylum seekers have found a new home.
But even in those areas where common minimum standards apply, there are stark divisions. In 2015 Hungary recognized only 10 percent of its asylum seekers as needing protection. The figure in Germany was 40 percent and even 65 percent in Italy.
The differences regarding refugees from Iraq were particularly extreme. On the E.U. average, one in two was considered worthy of protection, in Italy almost all and in Greece only 3 percent – in spite of the fact that all follow the same European law.
There are also striking discrepancies in welfare provisions. In Germany recognized refugees receive an apartment and monthly stipend. In Italy they get residency and work permits, and are put on the street.
European courts have exacerbated some contradictions. For instance, ever since the European Court of Human Rights in 2011 cited grave shortcomings in the Greek asylum process, and declared the living conditions of refugees there to be “inhumane,” Germany has not sent any asylum seekers back to Greece.
Nor is Italy necessarily a secure third country. At the end of 2014, the human rights court decreed that the Swiss-ordered deportation of an eight-member family from Afghanistan was “inhumane treatment” —because no assurance could be received from Italy that the children would be housed in a manner suitable to their age and that the family could remain together.
It is a strange clash of values: After his application has been rejected, an Afghan can be returned to his home country because, in the asylum process, there are humanitarian reservations about his transfer to an E.U. country such as Greece or Italy.
Some asylum judges likewise criticize a 2012 decision by Germany’s constitutional court, which granted asylum applicants a minimum of aid amounting to standard welfare benefits of an apartment and a monthly stipend.
“That was a real magnet,” said one asylum judge who is esteemed by human rights organizations for his decisions. Three months after the 2012 court decision, the asylum judge was processing more than twice as many applications from the western Balkans.
What at the beginning of 2015 were Serbs, Albanians and Kosovars are today North Africans, Pakistanis and Afghans. Most probably are not refugees in the sense of the Geneva Convention, but instead leave their home countries because of economic distress.
One characteristic of the large influx of refugees to Europe is that it includes individuals whose reason for flight are quite diverse but also overlap. And for obvious reasons, most want to go where the most jobs are, with the most generous social services and best health system.
It is difficult to make fair decisions here. For that reason, other doors to Europe should be offered and genuine offers made to those who above all are seeking work. This is indeed happening, but far too infrequently.
And it must be clearly stated to asylum seekers that they will only be granted protection and financial assistance in the European Union where a slot is available. They can’t settle wherever they want.
That’s why the European Union cannot continue to avoid a distribution of burdens, simply because it might be too complicated and a few states are causing problems. If neither voluntary action nor enforced participation has the desired effect, then progress can perhaps be made with inducements.
“Offering the carrot” is how administrative judge Jan Bergmann describes it. Just like the federal government pays German states a lump sum for each refugee, the European Union could do likewise.
Taking in asylum seekers has to pay off for everyone. The new treaty calls for the European Union to take in 72,000 refugees from Turkey. That’s not very many. Perhaps the low number would be the occasion for a pilot project.
The deal with Turkey could also open opportunities for a new European asylum system where it is not expected. In all 28 E.U. countries, the relevant asylum laws continue to be valid – the Geneva Refugee Convention and the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, as well as the countless regulations of European asylum law.
This means that every refugee who reaches Greek shores has, now and in the future, the right to submit an asylum application in Greece. It can be ascertained whether he is in need of protection and would be secure if he were returned to Turkey. If so, he can live there out of danger and with some degree of human dignity — with a roof over his head, able to send his children to school and permitted to work.
Greece cannot avoid the obligation to conduct such examinations. But because there are scarcely more than 120 Greek decision-makers regarding asylum, the Athens government is desperately in need of European support — for securing borders, establishing and operating reception centers, processing asylum applications and returning refugees to Turkey.
The European Asylum Support Office has been working on Malta since 2010; experts are waiting in the wings. Drawers in Brussels already contain plans for a better management of refugee crises. A small rapid deployment force is supposed to be sent wherever an emergency arises on E.U. borders and provide help. The word is that the European Commission and member states intend to mobilize up to 4,000 experts for Greece in coming weeks.
This will be a massive experiment observed by the whole world. Everyone will watch what happens to refugees in Greece and Turkey —Amnesty International, the U.N. refugee agency, the European Commission, governments, political parties and, of course, the European Court of Human Rights in Strasbourg and European Court of Justice in Luxembourg.
There couldn’t be better monitors of European asylum policy.
This article originally appeared in the newspaper Die Zeit. To contact the author: firstname.lastname@example.org