Legal escape routes could prevent suffering

11/Sep/2015

The EU and Switzerland would prefer to close their borders to the growing flood of refugees. Migration experts propose the exact opposite ‒ that we should open up the borders instead. By Pascale Hofmeier

(From "Horizons" no. 106, September)
Picture: © Keystone / AP Photo / Emilio Morenatti

​In 2015 the EU expects to have to cope with a total of 900,000 refugees from war zones and crisis areas. That’s 50% more than last year. The boat people who try to cross over to Italy, Greece and Malta in flimsy boats have been a main source of headlines. Because they don’t want to stay in those countries, they try to move elsewhere without registering in their country of arrival.

This increasing flood of asylum seekers and economic refugees has made the idea of closing Europe’s borders increasingly popular. "The EU’s main problem is that its member countries only agree on a common policy when it’s about trying to strengthen their outer borders", says Alberto Achermann, professor of migration law at the University of Bern. This means it’s only by taking illegal, highly dangerous routes that asylum seekers can actually get to Europe and apply for asylum.

Concentrating on securing our borders is done for reasons of state and is based on the assumption that yet more refugees would arrive if the borders were open. "But no one knows if that is true or not", says Achermann. There is evidence that emigration increases from certain countries when freedom of movement is instituted, but that the opposite is the case in other countries. "It’s rarely the legal situation that determines the flow of refugees. It’s economics". This suggests that border controls are not an effective instrument, because such controls can often be circumvented in some way or other.

For example, there has been an investigation into the impact of increased border security between Mexico and the USA. The results suggest that this doesn’t lead to less immigration, but to less return migration, because it’s become more difficult for people to get back home again across the border. Achermann says that studies into the public administration of western European countries have actually come to a different conclusion, namely that less stringent border controls would indeed lead to more immigrants.

The dangers of rejection

If we look at things from a historical perspective, we see that national borders remained open for a relatively long time. "Until the early 20th century, the whole world recognised the free right of residence", says Achermann. One of the first countries to restrict that right was the USA, which began to control access to its land in 1875. From 1917 onwards, this also applied to economic migrants coming by boat from Asia, and later also from Europe. "These immigration controls were the beginning of the refugee problem", says Achermann. Now the state was faced with the tasks of registering arrivals and of finding ways to accommodate them.

After the USA, it was Europe that adopted the principle of immigration control. In Switzerland, for example, free immigration ended with the First World War. But selective immigration criteria were only introduced in 1931 with the Federal Law on Temporary and Permanent Residence, which was intended to protect the country from being ‘overwhelmed’ by foreigners. Whoever sought asylum in Switzerland on grounds of belonging to a specific race was now simply turned away.

This practice was widespread in Europe and, as we know, it had devastating consequences after the Nazis assumed power in Germany. “At the Evian Conference of 1938, which was supposed to settle the matter of Jewish emigrants, no country showed any desire to accept them”, says Achermann. And when the Nazi machinery of extermination was set into motion, all countries – including Switzerland – turned away Jews at their borders, sending them back to certain death instead. “It was the Second World War that created an awareness that refugees need rights”, says Achermann. These rights are governed today by a multitude of national and international laws and conventions. The Geneva Convention on Refugees of 1951 states a core principle: that of ‘non-refoulement’. This principle of non-rejection forbids a country from sending people back to where they are threatened by torture or by other grave violations of human rights.

How a country deals with asylum seekers is a domestic issue that’s dealt with very differently across Europe. The EU has agreed on basic principles and on various instruments for a ‘Common European Asylum System’. But those principles are applied only sporadically, and often not at all. So it’s actually impossible speak of any
‘common’ European asylum policy today. Instead, countries are busy haggling about an allocation formula according to which the boat people could be distributed among all the countries of the European Union.

The same approach, again and again

Achermann is convinced that this isn’t a proper attempt at a solution. “People don’t function according to the way technocrats think”. Overall, it is striking that it’s the same solutions that are propagated, again and again. These include closed borders, camps in transit countries and protected zones in the countries of origin. The fact that these ideas are problematical is proven once again by history, as in the case of Western Sahara. In the border area between Algeria, Morocco and Mauretania, some 200,000 refugees have been waiting for a solution for 30 years. Meanwhile, a third generation of refugees is growing up in the camps. “And since the war in Bosnia, we all know what can happen in protected zones”, says Achermann, referring to the
massacre of Srebrenica.

François Crépeau has a different solution. He is the Special Rapporteur on the Human Rights of Migrants to the UN, and the incumbent of the Hans and Tamar Oppenheimer Chair in Public International Law at the Faculty of Law of McGill University. He proposes applying the completely free movement of persons to migrants. Whoever registers voluntarily in a country on arrival should be able to travel on afterwards into his or her country of choice. “Whoever has personal reasons to go to Sweden won’t stay in Estonia”, says Crépeau. He is thus proposing the exact opposite of the current situation, in which rigorous border controls have essentially turned the Schengen Agreement into waste paper.

Creating legal channels

And instead of continuing to invest huge sums into securing borders, Crépeau proposes controlled mobility and controlled migration channels. For example, he suggests that teams should go to the migrants’ home countries and choose a certain number of people every year to be allowed to come to Europe. “I’m convinced that people would wait for their legal opportunity to come, instead of spending immense amounts of money on a very risky, illegal endeavour”, said Crépeau recently when he visited Bern to give a lecture. And he also pointed out that people smugglers will always be one step ahead of border authorities.

This conviction is shared by Achermann. He points to the refugee catastrophe that helped coin the phrase ‘boat people’ in the first place. At the end of the war in Vietnam in 1975, 2.5 million people tried to flee from the communist regime there, using rickety boats to try and get to Laos, Cambodia or China. Some 200,000 people died in the process. In the late 1970s, the USA established the Orderly Departure Program, which offered people an opportunity to emigrate through legal channels. More than 600,000 people were allowed to leave as a result. “This would be a good approach for Europe – only it’s politically unpopular, and there isn’t a single country that would support it”, says Achermann.

Europe: a childhood dream

What are the reasons and the expectations that drive asylum seekers to risk their lives? David Loher, a PhD student at the University of Bern, has investigated this in the project ‘How does border occur?’. His research focusses on the question of how migrants and state authorities deal with borders. “Borders are constantly being created anew, subverted and reformulated by those on all sides”, says Loher.

He has been examining the biographies of Tunisian asylum seekers who came to Switzerland shortly after the fall of the dictator Ben Ali. The ‘harraga’ – their clandestine journey across the Mediterranean – is an important collective topic among the Tunisian youth, says Loher. “In contrast to refugees from failed states such as Eritrea, or crisis zones such as Syria and Iraq, young Tunisians fled from high youth unemployment, an authoritarian regime and rigid family structures”. In most cases, however, the harraga remained imaginary. It was different during the turmoil of the revolution when the state security apparatus was weakened: tens of thousands seized the opportunity to get out. But in many cases – some voluntary, others involuntary – this only ended in a return journey home.