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. 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. Furthermore, the Executive Order suspended the U.S. Refugee Admissions Program (USRAP). Such discrimination against Muslim-majority countries and arbitrary refusal of admission to refugees rightly appalled politicians and civil society alike in countries around the world. Although the Executive Order has been suspended by a US federal judge, the Trump Administration is likely to issue another Order shortly.
Looking in the mirror and dealing with the reflection
While Trump’s Executive Order is widely viewed -including by myself – as an abject measure and a violation of international and human rights law, including children’s rights and refugee rights, I cannot help but question how much better Europe is faring in dealing with its borders, its migration policy, and its international protection obligations.
In Calais, a wall has been built with British funds. In Hungary, a wall prevents refugees from reaching the country and seeking asylum. 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 initiative. 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 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 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. Advocate General Paolo Mengozzi, in an Opinion to the Court of Justice of the EU, has recently argued in favour of public authorities in the EU having to issue visas on humanitarian grounds to fulfil their international protection obligations. Nonetheless, economic pressures, populist movements across Europe and lack of political solidarity between European countries is preventing Europe from fulfilling its obligations in a comprehensive and timely fashion. Crucially, any progress that has been made on this front is constantly under threat.
So what is preventing Europe from doing much better? The usual: lack of political will and leadership. As there is no likely way to improve either, it is important to discuss other more immediate solutions. Although there may be plenty of room for improvement of the Common European Asylum System (CEAS), the greatest cause for concern relates 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. One might suppose that humanitarian and legal grounds for reform 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, any implementation measure must be 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 matters. This should most likely lead to the suspension of the agreements with Turkey and Libya. Perhaps the EU should also consider a stronger stance with regard to member states—such as Hungary—ferociously undermining asylum-seekers’ right to international protection. As a last resort, this could include triggering Article 7 of the Treaty on the European Union, which could lead to the suspension of the voting rights in European Union bodies. Admittedly, this is the least palatable measure, considering that this provision has never been used and that the European Union is currently in the midst of Brexit. EU actions perceived as attacking the pride and sovereignty of a member state might give strength to other exit efforts. In the long run, however, club members that undertake conduct inimical to basic norms will denigrate the reputation of the club.
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 flee 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 from their homes.
None of this is to soften condemnation of Trump’s immigration ban. Yet, it is essential that Europeans across the whole continent remain alert and engaged if we wish to be able to criticise other countries with a clear conscience. 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, Trump’s actions and rhetoric 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 Professor of Law at the University of Sussex. His research focuses on human rights, European law, children’s rights and asylum and refugee law. Nuno is also a Horizon 2020 ERC Starting Grant recipient, leading the project SOGICA – Sexual Orientation and Gender Identity Claims of Asylum.