Italy’s Immigration and Security Decree: A lose-lose outcome

Italy’s new Immigration and Security Decree has scrapped humanitarian protection and revoked a holistic approach to asylum seekers’ reception. This will result in an increase in irregularity, which will translate into marginalization and increasing insecurity for local communities, argues Chiara Marchetti.

Chiara Marchetti, University of Milan

Migration and security have always been the Lega party’s workhorses and its current leader, Minister of the Interior Matteo Salvini, has built the party’s recent electoral success – constantly growing even after the March 2018 elections (according to the most recent data, it has now reached at least 30%) – right around these issues. Migrants have often been defined as a burden, as irregular aliens, or even as criminals, no matter what data showed. But the most recent developments have pushed this narrative’s normative boundaries. Now, it is not only migrants’ individual actions, but their exercise of the right to asylum itself that is criminalized. The Immigration and Security Decree, issued on October 2018 and converted into Law n. 132, attacks asylum seekers and the reception system as a whole. It inverts the image of migrants landing on the Italian shores. The impression is that they are not considered as subjects at risk, but, on the contrary, as risky subjects. Those escaping from Libya and trying to reach Europe are not to be rescued anymore, but to be pushed back. Because asylum seekers are generally suspected of being bogus, law 132/18 arranges for their confinement and control. And at the end of their asylum procedures, the possibility of being protected by a regular status has become almost a mirage. But it has not always been so.

Since 2002, the institutional reception system formally allowed asylum seekers to have access to the same services and projects as offered to refugees. The System for the Protection of Asylum Seekers and Refugees (SPRAR) – even though systematically undersized if compared to actual needs – relied on a holistic idea of embedding reception in public welfare. This reception programme included not only the fulfilment of basic needs, including asylum seekers’ housing in apartments or small and decentralized facilities, but also different services and activities aimed at social and economic integration (such as Italian courses and employment programmes). Already while being an asylum seeker, the migrant had access to welfare services and was able to enjoy a number of social and economic rights that matched Italian citizens’, without being separated from local communities.

Although Minister Salvini himself had called SPRAR “a bridge necessary for inclusion” in an official report just a few months before passing the Immigration and Security Decree, Law 132/18 caused SPRAR’s progressive depletion. Since October 2018, only the holders of international protection (refugee status and subsidiary protection) and unaccompanied foreign minors are admitted to the SPRAR programme. Asylum seekers are excluded and assigned to “extraordinary” reception centres (Centri di accoglienza straordinari), where they receive minimum services and nothing which might be useful in their path towards integration (including learning Italian). At a time when asylum seekers are particularly vulnerable, their existence is suspended and secluded as they cease to benefit from SPRAR’s holistic approach to reception. They are confined to big and isolated centres reminiscent of prisons, with limited and conditioned access to the outside. The social workers employed here are transformed into guardians, mandated to control guests day and night. Thus, it has recently been reported that social workers in reception centres were asked to go through asylum seekers’ private e-mails and purchases.

In contrast to this, SPRAR ensured a reception system based on the responsibility of local institutions, on the subsidiarity of the third sector and on asylum seekers’ exposure to intercultural relations from the very beginning of their life in Italy. The continuity – before and after they are formally granted protection – of the reception experience and the possibility to access individual needs and aspirations with the help of a qualified team of social workers allowed asylum seekers and refugees to be the real protagonists of their stories.

In the new scenario, what is left is the privatization of reception in the extraordinary centres for asylum seekers. Law 132/18 arranged for centres to be run by private actors without any involvement of the local institutions, and therefore without a programmatically planned connection with welfare services and the territorially competent bodies. And Law 132/19 extends the securitization of control, practiced in deportation-focussed facilities like hotspots and centres for repatriation, to asylum seekers’ reception centres.

The strict application of the current law risks violating the spirit and the letter of the Italian Constitution. The Constitution of 1948 provided for a right to asylum even before the Geneva Convention came into existence. Article 10 states: “A foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitution shall be entitled to the right of asylum”. Even though this was never fully transposed into an organic law – Italy does not have a coherent asylum law in Italy, but only single articles or decrees –, since 1998 it had become possible for a foreign citizen to be granted a residence permit for humanitarian reasons, in case he/she presented “serious reasons, in particular humanitarian or resulting from constitutional or international obligations of the Italian state”. This extended protection to a number of vulnerable asylum seekers: unaccompanied foreign minors traumatized during their journey, women with children who suffered torture and/or detention in Libya, those whose human dignity is not guaranteed in their country through an acceptable standard of living, or people fleeing emergencies, such as armed conflicts or natural disasters in countries outside the European Union. The extension of humanitarian protection has given asylum seekers access to a protection status who have previously been considered ‘economic migrants’ only: Around 100,000 migrants from, for example, Gambia (among whom many unaccompanied minors), Mali (144th place of the Global Peace Index in 2018) and Bangladesh (victims of a mix of internal insecurity and environmental catastrophes) have been granted humanitarian protection in the last ten years, making for an average of 20-25% of first instance decisions. All of them also had the opportunity to access the institutional reception system the same way as those granted international protection.

The Immigration and Security Decree has completely upset this scenario. Humanitarian protection has been abolished and substituted by much narrower forms of protection, which neither allow migrants to access the reception system, nor to work and gain economic independence.

As a result, Italy is witnessing an increase in irregularity, which will in turn spur social marginality  to grow in the near future,  paradoxically – if one takes for granted Salvini’s premises –  creating security problems for natives and foreigners alike. By restricting the right to asylum, many migrants will be unable to regularize their stay in Italy for years to come.  Contrary to Salvini’s demagogic slogans, only a small minority of irregular migrants can be forcibly returned, since Italy has no repatriation agreements with most asylum seekers’ countries of origin. The ISPI research centre estimates that in the period between June 2018 and January 2019, 45,000 migrants have become irregular, having been denied any form of protection. Of those, only 5,000 were repatriated, while the remaining 40,000 stay on Italian territory, without a residence permit or the possibility of acquiring one. The same research institute also estimates that the number of irregular migrants on Italian soil will have grown to 140,000 by 2020, excluding future arrivals.

Italy’s new “Security” Decree ends up producing insecurity, one might conclude. In fact, it is precisely regularity that most effectively reduces crime rates among foreigners. As demonstrated by the economist Paolo Pinotti, foreigners who obtain a residence permit are 50% less likely to commit serious crimes (thefts, robberies, drug dealing) compared to those with an irregular status. But insecurity is not only an unintended consequence suffered by local communities. It is, above all, the everyday experience of all those migrants whom irregularity renders more likely to become victims of exploitation, blackmail, invisibility and marginality. There is hardly a possibility to exit the vicious circle: once being denied asylum, Italian law offers no way to obtain a residence permit, even if a migrant has a regular job and/or positive social relations within his or her community. A lose-lose outcome, where the only winners are fear and racism.

Chiara Marchetti is a lecturer in Social and Political Studies at the University of Milan, Italy. She can be contacted at chiara.marchetti@unimi.it.

Fortress Hungary

Based on her ethnographic research in Hungary, Elżbieta M. Goździak reviews how the criminalization of refugees and asylum seekers has played a crucial part in the built-up of Viktor Orbán’s “Illiberal Democracy”.

Elżbieta M. Goździak, Adam Mickiewicz University, Poznań

On a crisp fall morning in 2016, Péter, my research assistant, and I were buying train tickets at the Keleti Railway Station to visit a refugee camp in Bicske, when we spotted a poster aimed at recruiting “border-hunters.” Intrigued by the poster, I nudged Péter to talk to the recruiters to learn more about this scheme. We learned that the Hungarian police was recruiting 3,000 “border-hunters” to join 10,000 police and soldiers patrolling a razor-wire fence built along the 175-meter long border with Serbia to stop refugees from crossing into Hungary.

In the summer of 2015, the same Keleti Railway Station became a de facto refugee camp for tens of thousands of people fleeing violence in the Middle East and Afghanistan. However, by the early 2017, the Hungarian border patrol reported detaining fewer than 200 refugees reaching Hungary’s southern border with Serbia a day. Ten thousand police and three thousand “border-hunters” to deal with a couple hundred refugees.

Having been born and lived in communist Poland for several decades, I am amazed that a country that once sat behind the Iron Curtain has adopted a build-a-wall mentality to keep out refugees and asylum seekers. My Hungarian friends remind me that Viktor Orbán, the Prime Minister of Hungary, has been building Fortress Hungary for some time now. Hungarian border police, guns in holsters, swagger in pairs alongside the fence in a scene reminiscent of the Cold War. The “border-hunters” are equipped with night-vision goggles, body heat detectors, and migrant-sniffing dogs.

At a swearing-in ceremony of border hunters in Budapest in the spring of 2017, a few months after our encounter with the recruiters, Viktor Orbán, whose anti-immigrant policies have gone down well with voters, said Hungary had to act to defend itself. The storm has not died, it has only subsided temporarily, he said.

 

Policing and fortifying borders

 

Border controls have been irrevocably linked to contemporary security discourses. The link between migration and criminal activities, originally present mainly in the rhetoric of right-wing fringe parties, has found its way into the political mainstream on both sides of the Atlantic Ocean. When Viktor Orbán, Jarosław Kaczyński or Donald Trump talk about migrants, they inevitably imply that migrants are criminals: terrorists, rapists, and thieves. Thus, borders need to by fortified to keep them at bay.

By the end of 2015, over 390,000 mainly Muslim refugees and asylum seekers crossed the Serbian-Hungarian border and descended on the Keleti Railway Station in Budapest. Yet, for Viktor Orbán, the arrival of refugees was not a humanitarian challenge but a Muslim invasion that required an appropriate response: closing the Balkan land route to the European Union.

Yet, this was not ‘enough’ as evidenced by the desire to recruit 3,000 ‘border-hunters’ to join the 10,000 police already patrolling the border. These actions stand in sharp contrast with the events of 1989, when Hungary opened its border with Austria and let thousands of East Germans through to West Germany. While it is true that the unprecedented influx of refugees and asylum seekers in 2015 did result in at least a handful of jihadi terrorists entering the Schengen Zone through Hungary, the government has systematically used the arrival of refugees as an opportunity to strengthen their Christian discourse—linking Christianity with the nation and simultaneously stigmatizing refugees as terrorists. The conservative media likened the recent migration with the Ottoman era when Hungary was a “bastion, “defending Christianity from “Muslim hordes”. Antal Rogán, at the time leader of the Hungarian Fidesz’ parliamentary group, warned of a future ‘United European Caliphate,’ while former Secretary of State László L. Simon urged Hungarians to make more babies to counter the negative cultural effects of mass migration. The political rhetoric included both national security concerns and cultural insecurity. Beyond political statements, armed military police patrols on the streets of Budapest have become a regular sight, as is the case in Paris and Brussels, while Hungary has yet to experience a terrorist attack.

 

Brussels or Budapest, that was the question

 

I got a glimpse at the ways Viktor Orbán manipulated the discourse about refugees in 2016 while in Budapest as the George Soros Visiting Chair in Public Policy at Central European University. A couple of weeks after my arrival, Orbán called for a national referendum and asked Hungarians a simple question: “Do you want the European Union to prescribe the mandatory settlement of non-Hungarian citizens in Hungary without the consent of the National Assembly?”

Voter turnout was poor. A mere 39 percent Hungarians voted, far short of the 50 percent participation required to make the referendum valid under Hungarian law. Never one to let facts get in the way of politics, Orbán, whose Eurosceptic Fidesz party has more support than all opposition parties combined, said in a televised speech:

The European Union’s proposal is to let the migrants in and distribute them in mandatory fashion among the member states and for Brussels to decide about this distribution. Hungarians today considered this proposal and they rejected it. Hungarians decided that only we, Hungarians, can decide with whom we want to live. The question was ‘Brussels or Budapest’ and we decided this issue is exclusively the competence of Budapest.”

Orbán decided that the 3.3 million Hungarians who voted “No” in the referendum spoke for the whole country of 10 million Hungarians.  After his speech, there were fireworks over the Danube river in the colors of the Hungarian flag.

The Hungarian anti-immigrant campaign started in early 2015, shortly after the terrorist attack in Paris on the offices of Charlie Hebdo. In a TV interview, Viktor Orbán said that “[I] would like to keep Hungary as the country of Hungarians,” indicating that there is no room in Hungary for any ethnic or religious minorities. This speech framed immigration as a security issue emphasizing that immigration and terrorism go hand-in-hand.

Between April 24 and July 27, 2015, the government conducted a national consultation on immigration and terrorism. A survey was mailed to all Hungarians 18 years of age and above to answer 12 multiple choice questions such as: Do you agree that ill-conceived immigration policies contribute to the spread of terrorism? Do you think that keeping illegal immigrants in custody round the clock should be made possible? The letter that accompanied the survey referred to refugees as economic migrants trying to cross the border illegally and gain access to social benefits in Europe. The letter also intimated that refugees and asylum seekers harbor terrorists, that they pose a ‘threat’ and ‘must be stopped’ (Bocskor 2018: 560-561).

As the survey was being mailed to all adult Hungarians, large billboards were being erected all over the country warning immigrants—in Hungarian (sic!) — not to steal jobs from Hungarians and to respect Hungarian law and culture. The Two-Tailed Dog Party (Magyar Kétfarkú Kutya Párt), a joke political party, erected their own billboards with messages such as “If you are the prime minister of Hungary you have to protect our laws” and “Immigrants do not take our jobs.” The United Nations High Commissioner for Refugees (UNHCR) joined the billboard campaign with their own posters. The national campaign cost 960 million HUF. Only one million of the eight million recipients filled out and mailed the questionnaire back (Kiss 2016). Nevertheless, Viktor Orbán continued to build Fortress Hungary.

 

Closing refugee camps

 

In addition to recruiting border hunters and building fences, Victor Orbán has closed most refugee camps.  The camp in Bicske operated as a refugee facility for over two decades. In the little museum established by refugees on the premises of the reception center one was able to see artifacts, coins, and paintings from many parts of the world. However, in December 2016, the camp was shut down as part of a government-mandated wave of camp closures. When I visited the camp a few days before it closed, 75 individuals, hailing from Cuba, Nigeria, Cameroon, Iraq, Pakistan, and Afghanistan, lived there.

At the time of my visit, Bicske, which could house as many as 460 refugees, was operating well below capacity. The number of asylum applicants in the country has decreased dramatically. According to data from the Hungarian Helsinki Committee, in October 2016, 1,198 refugees registered for asylum in Hungary compared with 5,812 in April 2016. As of October 2016, there were 529 asylum seekers staying in Hungarian refugee reception facilities: 318 at open reception centers such as Bicske and 211 in detention centers.

When the camp in Bicske closed, the refugees were relocated to a camp in Kiskunhalas in southern Hungary, some two and a half hours by train from Budapest. Not an optimal location.  The Bicske camp’s location offered its residents opportunities to access a variety of educational and recreational activities that helped them adjust to life in Hungary. Some refugees commuted to Budapest to attend classes at the Central European University (CEU) as well as language courses provided by non-governmental organizations (NGOs). Bicske residents often attended events and met with Hungarian mentors from groups such as Artemisszió, a multicultural foundation, and MigSzol, a migrant advocacy group. Christian refugees were bussed to an American church each Sunday morning. Moving the residents to Kiskunhalas deprived them of these opportunities.

 

Criminalizing assistance to refugees

 

While help from Good Samaritans is crucial for refugees and asylum seekers in Hungary, recent legislation has seriously curtailed the ability of civil society to provide assistance to undocumented migrants. In June of 2018, the Hungarian Parliament approved a package of laws called the “Stop Soros” bill that criminalizes assistance to undocumented migrants and creates a parallel court system to try those who attempt to provide assistance to migrants.  Many fear that this new legislation will be used for politically sensitive cases, accelerating efforts by Prime Minister Viktor Orbán to transform the country into what he calls an ‘illiberal democracy.’

Ironically, the new legislation passed on World Refugee Day. Under the new law, assisting migrants to legalize their status in Hungary by, for example, distributing information about the asylum process or providing them with financial assistance, could result in a 12-months jail term. The “Stop Soros” legislation has been condemned by the United Nations and Amnesty International as well as other human rights organizations. Patrick Gaspard, president of the Open Society Foundations, vowed to continue to support Hungarian organizations defending migrants’ human rights.

 

No to refugees, yes to migrants with money – and to Venezuelan refugees of Hungarian ancestry

 

While Mr. Orbán is vehemently opposed to finding homes for 1,294 refugees that the EU asked Hungary to assist, he is welcoming foreigners who are able to buy the right to live in Hungary. Since 2012, Viktor Orbán’s government has been selling government bonds worth about €300,000 ($331,000) that essentially act as resident permits for foreign investors. Apparently, some 10,000 Chinese have taken advantage of the scheme to move to Hungary as did smaller numbers of affluent investors from Russia and the Middle East. These investors are considered a threat neither to national security nor to cultural cohesion of Hungary.

Recently, Hungary has accepted 300 refugees from Venezuela. The Hungarian Charity Service of the Order of Malta has led the resettlement effort. The refugees had to prove some level of Hungarian ancestry in order to qualify for the resettlement scheme.  About 5,000 Hungarians emigrated to Venezuela in the 20th century, mostly after World War II and in 1956.

By Hungarian law, everyone who can prove Hungarian ancestry is entitled to Hungarian citizenship. As Edit Frenyó, a Hungarian legal scholar told me, “Of course process is key, meaning political and administrative will are needed for successful naturalization.” According to media reports, the refugees are receiving free airfare, residency and work permits, temporary housing, job placement, and English and Hungarian language courses, but apparently, they  are told not to talk about the reception they receive in Hungary. Perhaps the reason why they are supposed to be silent relates to the official narrative, an ethnonational story of home coming, in which they are presented as Hungarians, not refugees or . Gergely Gulyás, Chancellor of the Republic of Hungary, said: “We are talking about Hungarians, Hungarians are not considered migrants.”

 

Promoting anti-immigrant strategies among the Visegrád Four

 

Viktor Orbán is promoting his strategies—militarization of borders, closure of refugee camps, strict immigration policies — among leaders of the other Visegrád Four countries: Poland, the Czech Republic, and Slovakia. Anti-immigrant sentiments and xenophobic rhetoric are on the rise in Poland where Mr. Orbán’s friend, Jarosław Kaczyński, the Chairman of the ruling Law and Justice party, spews the same hatred of Muslim refugees. But the situation in Poland is a topic for a different blog post.

 

Elżbieta M. Goździak is a fellow at the Center for Social Justice at Georgetown University, Washington, DC and a visiting professor at Adam Mickiewicz University, Poznań, where she teaches in cultural anthropology and migration studies. She can be contacted at emg27@georgetown.edu.

The UN Global Compacts on Migration and Refugees, Sovereignty and the New Populist Far-Right Global Network of Cooperation

Much of the heated debate surrounding the Global Compacts on Migration and Refugees shows that populist politics and strategies are no longer only done within national borders. By trying to make exclusive nationalism, ethno-pluralism and unlimited sovereignty acceptable and effective political rationales again, populist parties organize themselves as transnational, far-right networks. Regarding the Global Compacts, this led to a situation where Europe had to give up its alleged unified commitment to these global agreements. In the long run, the nationalist backlash, pushed forward by populist far-right networks, will question the role of the EU as a reliable actor in global cooperation.

François Boucher, University Paris 1 – Panthéon Sorbonne

Johanna Gördemann, University of Duisburg-Essen

Up until recently there was no formal UN organization dealing with all aspects of international migration. However, the 2015 migrants and refugee crisis has prompted a new era of global governance of international migration. Indeed, in September 2016, in response to the crisis, the UN General Assembly adopted the New York Declaration for Refugees and Migrants. The Declaration expresses solidarity towards all migrants, recognizes their special vulnerability and carries the promise of a strengthened international cooperation for the protection of the rights of all migrants and asylum seekers.  It claims that contemporary large migration fluxes “call for global approaches and global solutions. No one State can manage such movements on its own”.

To materialize this call for greater international cooperation on all aspects of migration, the Declaration committed UN Member States to work towards the adoption of two Global Compacts, The Global Compact on Refugees (GCR), and The Global Compact for Safe, Orderly and Regular Migration (GCM). The former was adopted by the UN General Assembly on December 17, 2018, while the latter was adopted by UN member states at an intergovernmental conference in Marrakech, Morocco, on December 11, 2018, and was formally endorsed by the UN General Assembly on December 19, 2018.

Although neither the New York Declaration nor the two Compacts attracted a lot of attention from the media during the consultation phases leading to their adoption, the GCM, especially, appeared on the radar of international and national media, at first timidly, following the U.S. withdrawal from the negotiations of both Compacts, in December 2017. The Compacts attracted much more media attention in late 2018, when several European states, citizens and political parties, expressed worries that the Compacts may threaten national sovereignty by recognizing a human right to migration and by imposing migration policies designed by international institutions. Central to those debates were the voices of far-right organizations projecting an image of weakened EU states in need of regaining control and reaffirming the importance of borders and national self-determination. This lack of support coming from different EU Member States not only threatens the unity of the European Union. It questions the role of the EU as a reliable global actor in international politics and cooperation. While the supporters of the Compacts work towards a different kind of paradigm for thinking about migration management, Europe is still substantially divided regarding its own asylum and migration policies.

The sovereigntist critique of the GCM fits the general framework of nationalist opposition to international law and transnational governance. It claims that the more international institutions and networks are empowered, the less meaningful the nation states’ right to self-determination becomes. As the US Ambassador to the UN said while rejecting the Compact: “our decisions on immigration policies must always be made by Americans and Americans alone (…). We will decide how best to control our borders and who will be allowed to enter our country.”

Preserving sovereignty was the core reason given by the US to withdraw from the negotiations of the Compact and was central in the justifications given by European countries that voted against the pact, such as Hungary, Austria, Czech Republic and Poland. But it was also central in the opposition to the compact that emerged in countries that signed the GCM, even ones generally sympathetic towards migrants such as Belgium, France and Germany. In Belgium, for instance, members of the N-VA Flemish nationalist party stated that their “house of democracy is located in Brussels and not in Marrakesh” and claimed that signing the GCM would lead to a juridical jungle where the very vague objectives of the Compact will be misused by activist judges at the expense of national sovereignty and border control.

Hungary already pulled out during the negotiation process of the Compact in 2017, as Prime Minister Victor Órban questioned the EU´s mandate to negotiate the Compact on behalf of all of its 28 Member States, but it was Austrian Chancellor Sebastian Kurz who triggered the wave of withdrawals with his announcement to reject the GCM at the end of October 2018. Based upon a misguided interpretation of the 1951 Geneva Refugee Convention as being a purely humanitarian tool to protect some vulnerable individuals from political persecution that has been instrumentalized by EU directives to broaden the refugee status and to foster illegal migration, some Austrian politicians expressed concerns that the GCM might have the same potential of being turned from soft law into hard law – as the European Court of Justice, in their view, often pursues an ideological expansion of human rights.

Following Austria’s example, German right-wing populist party AFD argued not to trust the alleged legally non-binding nature of the GCM. The AFD highlighted the effect of soft international law and the risk of seeing the GCM becoming a normative point of reference slowly incorporated into national legal practice. Ironically, the AFD even appealed to the collective right to cultural self-determination of peoples to argue for the necessity of protecting German culture, which they claim is, due to mass immigration, particularly vulnerable and worthy of protection. Actually, this right is exclusively intended for indigenous populations and minorities to protect their traditional ways of life and therefore not applicable to the German population as a whole. This right is of relevance for states in which “ethnic, religious or linguistic minorities exist. (P)ersons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Furthermore, the argument put forward itself builds upon a human right, that is, obviously, part of a transnational and global system of rights that the AFD, in other respects, consequently denies because of the system´s presumed potential to weaken national sovereignty.

All of these reactions present themselves as local (national) answers to a cosmopolitan project pioneered by transnational elites coordinating their efforts to undemocratically set up coercive international institutions threatening to do away with the sovereignty of democratically elected national governments. Yet, this depiction of the opposition to the Global Compacts is misleading in several ways. First of all, those individual national reactions all partake into the current right-wing nativist Populist Zeitgeist (Mudde, 2004). All those apparently separated individual reactions actually share the same language and rhetorical strategies. All appeal to the interest of true, ordinary, and hard-working people into preserving the integrity of their national culture and all claim that this interest is threatened by globalist elites who do not understand ordinary citizens’ legitimate cultural anxieties (they allegedly only want more immigration because they want to drive wages down or they do not care about it as they inhabit wealthy neighborhoods unaffected by immigration). For instance, Marine Le Pen, leader of France’s far-right populist party Rassemblement National, claimed that the Compacts were the work of “contemptuous oligarchs”. Moreover, in an effort to avoid opposing the Global Compacts on overtly racist grounds, many proponents of the sovereignty argument claim that closing borders would actually protect diversity at a global scale on the alleged ground that immigration and multiculturalism in every country would reproduce everywhere the same kind of cosmopolitan melting-pot culture.

The similarity in the rhetorical maneuvers taken by the various protagonists of the current wave of anti-immigration right-wing populism is not a mere coincidence. It now appears that the far-right groups have launched a coordinated campaign throughout Europe to oppose the GCM starting in October 2018. Indeed, researchers have observed a sudden burst of social media activity related to the Global Compacts on far-right activists’ accounts in last October. This burst, including tweets, videos and online petitions, spread the view that the Global Compacts would impede national sovereignty and institutionalize a right to immigrate. It was spearheaded by right-wing social media political influencers and Youtubers such as Austrian Martin Sellner. What is striking about this campaign is that it shows a great level of transnational coordination between various far-right nationalist organizations and activists. This is not an isolate case, in recent years, researchers have already documented the global dimension of the new generation of far-right nativist nationalists and the extent of the cross-borders collaboration between local far-right nationalistic organisations in the digital era (see for instance this report from the ISD, the works of Ico Maly and of José Pedro Zúquete, all highlighting the global dimension of the new far-right anti-immigration nationalists). Such transnational cooperation includes convergence on shared online platforms, funding of activities, joint participation in various stunt operations (such as the ‘Defend Europe’ operation which included several social media activists from North America and Europe), information sharing, best practices sharing, coordination of social media raids, strategic planning, meme factoring, disinformation campaigns, mass trolling, automated communication on social media and various other techniques. This large-scale mobilization suddenly put the Global Compact on the news in fall 2018 while it was mostly uncontroversial and unheard of in mainstream media prior to that.  The campaign helped creating the misguided perception that the Global Compacts were legally binding international treatises that would consecrate an entirely new era in migration policy in which states would no longer be able to control their borders.

As the protagonists of this new populist far-right present themselves as the champions of national sovereignty engaged in a struggle against global elites depriving nations of the means to control their fate, it is important to stress how their discourse misrepresents international law and the Global Compacts while it conceals its own very nature in a vicious way.

First of all, the argument that the GCM will, just as several normative aspects of refugee law, suddenly turn from soft law into binding hard law is deeply mistaken. The protection of refugees, unlike the protection of migrants in general, is a matter of customary international law and has, due to that standing, always been a legal obligation for all of those countries that have ratified the 1951 Refugee Convention or the related 1967 Protocol. It is not humanitarian in character because it implies some legal core principle like, for example, the principle of non-refoulement, which requires states not to return refugees to a situation of risk. The argument also ignores the fact, that the Refugee Convention originally was designed to save the European project after World War II, as the continent was confronted with an overwhelming mass of refugees and stateless persons. By offering a status to these persons and also by reintegrating them into the state system, European nations were supposed to regain control over their sovereignty and to guarantee the common transnational peace project. What this shows is that, in the first place, events in Europe have been the reason for the creation of a refugee regime. Therefore, referring to a Convention, that initially was supposed to address the mass displacement within Europe after WW II, as being an instrument to threaten EU state´s sovereignty nowadays, seems to be inadequate.

Secondly, fears of loss of sovereignty and capacity to manage borders seem to be at odds with the spirit and the letter of the GCM. Indeed, it was clear from the start that the Compact was to be a non-legally binding document. This means that the Compact is not a binding international treaty backed by enforcement mechanisms; it is not a so-called ‘hard international law’ instrument such as the 1951 Refugee Convention or the 1966 International Covenant on Civil and Political Rights. For instance, all the provisions for the funding of international initiatives in the field of migration included in the GCM refer to voluntary donations (see GCM, §43).

Similarly, while the GCR reasserts the already recognized (and legally binding) obligation of non-refoulement, it creates no further obligation to share the burdens of refugee protection among states. The Compact does lay out the details of an international arrangement for the sharing of responsibilities to protect refugees (see GCR, §14-48). Yet, the key of this arrangement is the creation of a global forum for the coordination of the voluntary efforts to resettle refugees (through discretionary pledges – not mandatory quotas) and the sharing of financial resources (through discretionary contributions).

Moreover, the GCM lists ‘national sovereignty’ as one of its guiding principles and reasserts “the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law (…). Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for entry, residence and work.” (see GCM, §7 and 15).

Inclusion of the notion of sovereignty in the GCM is not merely paying lip services to those nationalists skeptical about the intrinsic benefits of migration. Actually, the Global Compacts’ rationale is that greater cooperation in the field of migration enables individual states to better manage migratory flows. For instance, implementing institutional mechanism for resettlement and the sharing of resources can significantly help states neighboring refugees-sending countries to deal with sudden increase in asylum seekers crossing their borders. Just as the existence of the state does not reduce individual freedom, but rather expands it by providing individuals with stable and secure living conditions, so do international law and international cooperation provide states with more stable and predictable conditions facilitating the pursuit of their own development. Moreover, there is something silly when nationalists invoke national self-determination and sovereignty to oppose international law and UN states system, as sovereignty itself is a product of this very international order.

Last, but not least, one must appreciate the great irony and paradoxical nature of the nationalist backlash against the Global Compacts. Much of the new generation of far-right nationalists online activists embrace the large narrative of identitarianism claiming that European nations (and other Western countries) are threatened by the ethnic, cultural and religious diversification of their populations and that global liberal and left-leaning elites are preventing them from doing anything to counter this. While this new generation of nationalists complain about the influence of a transnational network of liberal elites, it conceals its very own nature as a large transnational network coordinating its actions and activism to influence the fate of various societies. Given the rise of right-wing populist parties all over the world in the last few years, it is hard to ignore the success of this global effort to steer politics at the local level. Moreover, while the protagonists of this transnational network present themselves as the champions of international cultural diversity, which they claim is undermined by the uniform multiculturalization of all societies, they conceal the very homogeneity of their own anti-immigration and anti-multiculturalism discourse and ideology.

 

François Boucher is a postdoctoral researcher in political philosophy at University Paris 1 – Panthéon Sorbonne. He can be contacted at Francois.Boucher@univ-paris1.fr.

Johanna Gördemann is a research fellow in political and legal philosophy at the University of Duisburg-Essen. She can be contacted at Johanna.goerdemann@uni-due.de.

 

 

The View from Germany: CEAS Reform and the Spectre of “Merkel’s Refugee Policy”

The German migration policy debate still widely assumes that Angela Merkel’s insistence on the primacy of European regulations over national laws is a position which strengthens migrants’ rights. But judging from the current state of the CEAS reform, this may no longer be the case. 

Therese Herrmann, University of Duisburg-Essen

One of the striking aspects of the ongoing German debate on migration policy three years from its crisis moment in 2015 is that the terms of the debate and the facts to which they refer have come so far apart that the debate can seem to chase ghosts. This month, Angela Merkel stepped down, after 18 years, as CDU party leader over her party’s slumping approval rates that many associate with a public dissatisfaction of her government’s handling of migration issues. But the ongoing political prominence of the migration policy debate not only ignores that the number of incoming asylum seekers in Germany is down below 2014 levels, it also seems to overlook that this is due to the ever stricter policies  Angela Merkel‘s coalition government introduced both at home and as part of a European executive.

But not just its right-wing contestants, Merkel‘s coalition government itself seems to regularly fail to capitalize on the effectiveness of its own stricter migration policies and the EU‘s executive policies Germany played a key part in devising. Instead of pointing to her government’s recent policies as examples of migrant deterrence, Merkel’s government has continuously emphasized both the need to regulate migration within a European framework of responsibility sharing and humanitarian duties towards refugees. But this is no longer in line with strengthening migrants’ rights, as many still assume. In the following, I want to share a few thoughts on (I) how the harmonization of European migration policy does no longer mean that migrants’ rights are strengthened, and (II) why the German public discourse still tends to assume it does.

(I) Let me start by looking back at Germany’s most prominent political debate on migration this year. Last June, Merkel withstood a prominent challenge by her right-wing conservative interior minister, Horst Seehofer, who argued that Germany had the right to unilaterally re-introduce border controls, so that asylum seekers already registered in another EU country could be pushed back before setting foot on German territory. Much of Seehofer’s argument drew on legal norms introduced into German migration law in the early 1990s, when the German legislator added an externalization clause to the right to asylum guaranteed by German Basic Law. The externalization clause held that only those asylum seekers could invoke the constitutional right to asylum who had not before passed a European Union member state or another third country which ratified the Geneva Convention and the 1967 New York Protocol. Merkel, by contrast, along with a sizeable number of German migration lawyers, pointed to the supremacy of EU law in migration matters, including when it comes to determining the member state responsible for processing an asylum request. She insisted that the Dublin regulations forbid push backs at inner-European borders, because they stipulate that no member state can unilaterally reject an asylum seeker at its border without establishing in each individual case – within a procedural framework guaranteeing the possibility of legal appeal – which other member state is positively responsible for her asylum petition.

As German public discourse erupted in a heated legal debate on the procedural requirements of the Dublin regulations and the relationship between national and EU law, it is worthwhile to note that the German chancellor did not simply dismiss her interior minister’s plan on the grounds of legality. Merkel’s bargain with the right-wing faction of her own party was to prove that a European solution would also be more effective in achieving Seehofer’s overall aim, reducing the number of asylum seekers crossing German borders. Merkel asked Seehofer to hold off an escalation to their conflict until she had discussed the matter at a European Council meeting at the end of June.

The “European solution” Merkel came home and, for the moment, managed to appease the right wing of her party with, had nearly nothing to say on Seehofer’s original problem, the procedural requirements of handling secondary migration inside the EU. It fully concentrated on declaring member states’ intention to cooperate in following the path laid out by the EU-Turkey statement of March 2016 and externalize both the reception of asylum seekers and the processing of their asylum requests to third countries. If Merkel’s European strategy did answer to Seehofer’s push-back test, it has only done so by re-interpreting Seehofer’s question in fully functional terms. As long as the absolute number of incoming asylum seekers is reduced, so it seems to claim, procedural questions will not be pressing. One reason why this strategy is questionable is that it implicitly risks further exaggerating the idea that undocumented migrants still exert significant pressure at German borders. In reality, the number of undocumented migrants registered at the South German border has been steeply declining.

Ironically, Merkel’s functional European approach also means that the European Commission is encouraged to further lower the standards at its external borders and will, as negotiations stand, take them below the levels Seehofer would have been able to point to in insisting on the applicability of Germany’s national laws. While the idea of setting up so-called transit centres at the Southern German border met with a relatively large opposition in the German public, notably from Merkel’s SPD coalition partner, the European Council’s plans to set up “controlled centres” and “disembarkation platforms” at Europe’s external borders have not been as widely criticized.

The irony lies in the implicit shift of normative perspective that has taken place. When Seehofer met with widespread criticism for justifying his push-back strategy on the basis of German legal norms that have been superseded by European law, many implicitly assumed that the European regulations were also more respecting of asylum seekers’ rights. But this no longer holds true. As part of the reform of the Common European Asylum System (CEAS), the European Council is currently working towards lowering standards in the Asylum Procedures Directive with the aim of enabling the externalization of asylum procedures to third countries, including states which, like Libya, only partially control their own territory, or, like both Turkey and Libya, have not ratified the Geneva Convention with regard to the refugees in question. If the reforms go through, then the requirements for externalizing asylum procedures to third countries outside of the EU will be lower than anything Seehofer could have implemented by pointing to the possibilities of externalization German law provides for. The externalization clause in German Basic Law, at the time of its introduction in 1993 a conservative political project aimed at deterring refugees fleeing from the civil wars in Ex-Yugoslavia, explicitly holds that asylum seekers can only be referred to those third countries that have ratified both the Geneva Convention and the 1967 New York Protocol. The EU’s new Asylum Procedures Directive will likely undercut it.

(II.) If what we see is indeed the German government pursuing an increasingly restrictive migration policy, why is it, then, that Merkel is still understood, and politically contested as, the pro-migrant chancellor? We might want to say it’s for a lack of alternatives. The political discourse has shifted so far to the right in recent years that the Merkel government’s emphasis on both European cooperation and humanitarian duties still represents the more liberal of the political options available. But, looking back at the Merkel-Seehofer controversy and its European solution, it is no longer clear whether the Europeanization of migrant policy is necessarily good news for migrant rights. And yet, we seem to have difficulties in grasping this. Public debate in Germany often assumes that European solidarity in migration policy also implies, at some point, the exercise of solidarity towards migrants.

Why would we make this assumption? Does it tell us something about the intransparency of EU level politics that Germany’s political public has hardly ever scrutinized CEAS reform? Perhaps. Have we been too complacent about European integration and its inclusive tendencies, ignoring that European integration is not an automatism, but whatever the sum of member states’ interests have made of it? In some areas, yes. Have we not been able to see that European cooperation in migration matters has, as legal scholars James Hathaway and Thomas Gammeltoft-Hansen call it, for most been “cooperative deterrence”, without an agenda to strengthen migrants’ rights?

All of the above apply. And still, looking at the way European legal integration has played out in the area of migration in the past decade, human rights advocates have had reason to be optimistic: European legal integration in migration matters seemed, on the whole, to be rights-generating for migrants. Take the Dublin Regulation as an example. Much like the third country partnerships the European Commission is currently negotiating, the Dublin Regulation had been conceived as a mechanism to inhibit secondary migration, allocating member states’ responsibility to process asylum petitions almost exclusively along the idea of first transit – and not, say, migrants’ preferences or a member state’s relative capacity to receive asylum seekers as measured by its economic performance. And yet, the fact that the Dublin Regulation established legally binding rules of responsibility sharing in processing asylum petitions meant that, for the first time, an EU member state could not unilaterally reject an asylum petition made at its borders without establishing which other member state is positively responsible for processing it.

Although not originally intended that way, the Dublin Regulation turned out to generate rights for migrants as it went through a number of legal contestations and specifications at the European Courts. By stipulating the procedures and time limits within which a member state must take charge of an asylum petition, they positivize within Europe what Hannah Arendt famously called the “right to have rights”, because they ensure that an asylum seeker on European territory will be able to exert her right to file an asylum petition somewhere. On top of that, they have also shown a potential to generate rights for asylum seekers with regard to the material conditions of their reception. From 2011 onwards, both the European Court of Human Rights and the European Court of Justice have ruled that member states must ensure in each individual case that proceeding according to the Dublin Regulation will not violate a migrant’s fundamental right to be free from torture and degrading treatment. The ruling led to a halt in Dublin deportations to Greece and, under specific conditions, a number of other Southern European countries – a circumstance that came to be a factor in the European migration crisis of 2015 – and encouraged expectations that the legal integration of European migration policy would lead permanently to an upwards harmonization of standards.

While the proceduralization of migrants’ rights in Europe has long been contrasted by EU level executive measures to step up border security in order to prevent migrants from reaching the jurisdiction of European courts, we now seem to see a different type of externalization strategy. European legal standards regarding third country partnerships are being harmonized downwards and may well come into conflict with higher standards set by national laws. If we, as a political public, are set on opposing right-wing nationalism by pointing to the normative benefits of European integration, we should pay attention to this process.

Therese Herrmann is a research fellow in Political and Legal Philosophy at the University of Duisburg-Essen. She can be contacted at therese.herrmann@uni-due.de.

Pathways to Europe.Migration and Democracy

Pathways to Europe.Migration and Democracy is a forum of debate on migration in and to Europe, aimed at drawing together philosophical perspectives with political, legal and sociological analyses. The blog is edited by a group of researchers working together within the intra-European research Project Norms and Values in the European Migration and Refugee Crisis (NoVaMigra), but aims to provide a platform for a variety of authors and views. We welcome contributions from relevant disciplines on current issues and developments in the field of migration, asylum and European integration.

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