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 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.

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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.

We encourage perspectives from different locations in Europe and are glad to publish reflections on national events pertaining to wider European developments. Literature reviews and conference reports are also welcome, as are requests to advertise relevant public events or calls for papers.