A 'migrant boat cemetery' in Lampedusa, Italy. Michele Lapini/Demotix. All rights reserved.As the UN High Commissioner for Refugees (UNHCR) reports, a staggering 137,000 people crossed the Mediterranean Sea into Europe during the first six months of 2015 – twice as much as during the same period last year. One third of them were from Syria, while the second and third most common countries of origin are Afghanistan and Eritrea.

The saddest aspect of this report is that refugees are still forced to undertake risky journeys across the sea using services of organized crime. The fact that so many people embark on what is arguably the deadliest migration path in history has to do with Europe's dismaying immigration policy – the absence of legal entry channels for persons in need of international protection and the gradual elimination of an access to asylum procedure for those who arrive ‘illegally’. The latter occurs through the militarization of EU border zones and through routine push-back operations, detentions, and deportation of refugees and migrants.

At the heart of the problem is the continuous and uncritically used notion of ‘illegal’ (or ‘irregular’) immigration, which is deeply embedded in all relevant political and administrative discourses. This notion of illegal immigration reflects a progressive erosion of the refugee status. It results from the unwillingness of European countries to take on responsibility, collectively or individually, to protect people from humanitarian catastrophes and gross and systematic human rights violations in their countries, to acknowledge the right of the people in these grave circumstances to be recognized as refugees and their right to seek international protection, material help and access to asylum procedure.

Erosion of refugee status

Destruction in Aleppo province, Syria. Yasmin Al Tellawy/Demotix. All rights reserved.There are three sources of this erosion. Firstly, the immigration debates in European societies are framed exclusively in terms of economics and security. Strong aversion to immigration is substantiated through dubious economic consequences (burden for strained welfare systems, pressure for lower wages, absence of tax revenues), negative social consequences (marginalization, exclusion, criminality, erosion of national identity) and of course through security risks. Secondly, the erosion is caused by the criminalization of migration paths. This means that a growing number of refugees are forced to rely on the services of traffickers whose activities have quickly become one of the fastest growing aspects of transnational crime.

Finally, the erosion of refugee status is exacerbated by the limits of refugee law, which include a narrow definition of asylum entitlement and the absence of legal right to asylum in international law. International refugee law is based on the 1951 Refugee Convention and an amending Protocol from 1967. When it emerged, there were around one million refugees in the world, mostly escaping totalitarian regimes in Europe. A refugee status was linked to political persecution by a totalitarian or dictatorial state, usually resulting from ideological dissent or inappropriate class origin. A typical refugee was an intellectual entering western countries alone with a moral credit of resistance to discredited state power.

While there is no legal right to asylum and no obligation to grant asylum to refugees under international law, states are bound by the principle of non-refoulement which provides that no refugee shall be returned to any country where his life or freedom would be threatened on account of his race, religion, nationality, political opinion, or membership of a particular social group. This prohibition of the rejection of a refugee at the border has been considered to be part of customary international law. Based on the recognition of this principle, states have in the twentieth century surpassed a narrow set of obligations implied in the Refugee Convention and created systems of admissions, asylum application procedures, and granted permanent asylum to those recognized as refugees.

Today’s context is very different. It is no longer state persecution and absence of civil rights and liberties which make people leave their homes. It is intrastate conflict, civil war, risk of genocide, internal violence perpetrated on massive scale either by organized crime or religious fundamentalists, and a total lack of state resources to create minimal conditions of security and social and economic development. People entering the EU from Syria, Afghanistan, Eritrea, Nigeria, Iraq, Pakistan, Somalia, Central African Republic, and Ukraine are escaping exactly these kinds of humanitarian catastrophes and gross internal violations of the most basic human rights.

People fleeing from these countries unambiguously qualify for refugee status. Their most fundamental human rights to security have been violated and they have an undeniable moral right to seek international protection from such hazardous conditions. They have a legal right not to be pushed back from borders and denied access to asylum procedure. Any country committed to upholding human rights and other fundamental norms of international law has a duty to provide material help and access to asylum procedure or provide other forms of protection.

Fortress Europe

Fence at the Spanish border. Noborder Network/Flickr. Some rights reserved.The EU’s immigration policy violates the moral and legal rights of refugees and makes a sham out of its legal obligations.

First of all, EU policies do not reflect the changing conditions of the refugee status and do not effectively recognize rights of these people to seek asylum. According to the so called Dublin Regulation – a system which regulates the process of application for asylum seekers – the state responsible for processing an application of an asylum seeker is the state through which the asylum seeker first entered the EU.

However, there is no commonly accepted definition of a refugee or set of conditions for processing asylum application. Most countries’ legal systems operate with a classically narrow definition of the right to asylum based on political persecution and impose strict limits on access to it. No European country provides sufficient legal entry channels for persons in need of protection, such as resettlement or humanitarian admission programs, humanitarian visas, family reunification programmes, or visas to reach a country in order to apply for asylum.

Furthermore, the EU makes it impossible for refugees to arrive at its borders. This has to do on the one hand with strict conditions of ‘legal’ or ‘regular’ access to the EU. In order to get to the EU legally from outside of the Schengen Zone, a person needs a visa which, for obvious reasons (fees, invitations, return ticket, medical insurance, affidavit of support etc.), refugees have no chance of obtaining. No European law creates a mechanism for the legal arrival of a refugee. The Dublin system rules are applicable only after a refugee arrives at the border, in territorial waters or in transitional zones.

On the other hand, refugees who make it to the border, for example on foot from Turkey to Bulgaria, or from Ukraine to Hungary, Slovakia or Poland (and soon between Hungary and Serbia) hit militarized and fenced borders. At these borders, as Human Rights Watch and other NGOs have documented, Frontex (an EU agency securing external borders of the Union from ‘illegal immigration’) together with local border patrols, police and military personnel routinely engages in detentions, deportations or the so called “push-back” operations which make it impossible for refugees to reach the border and file an asylum application. These operations violate the international legal principle of non-refoulement which is also firmly embedded in EU law, both in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights.

In the context of the lack of legal ways of arriving at the border and lodging an asylum application, the notion of ‘illegal immigration’ can only refer to the criminalization of a refugee’s leaving his or her home and seeking safety and international protection in another country. Illegalization of escaping the conditions of humanitarian catastrophe and gross human rights violations is a heavy blow to the universality of human rights and international refugee law.

The lack of legal or ‘regular’ paths to Europe, the closure of borders and the militarization of border zones forces refugees into taking dangerous journeys on shabby fishing boats or dinghies across the Mediterranean, using services of smugglers, and hoping that humanitarian duty to rescue vessels in distress at sea might get them to the European shores. On the Central Mediterranean route, one of the two most frequent migrant routes across the Mediterranean, 1750 people have died and 1700 are estimated missing this year, accounting for 80 percent of all migrant deaths this year worldwide.

Militarisation of migration

Vigil for migrants who drowned in the Mediterranean, Sliema, Malta. Ian Pace/Demotix. All rights reserved.In reaction to the Mediterranean humanitarian catastrophe, the EU launched an extensive military rescue operation in which drones, the navy, helicopters and surveillance centres fight against organized crime and illegal immigration. ‘Humanitarianism’ practiced in the Mediterranean thus acquires the bizarre meaning of military control, detention, deportation and a fight against organized crime. Much less emphasis is being put on the duty to rescue vessels in emergency and to assist persons in distress, bringing them to a safe place and enabling them to realize their legitimate right to apply for asylum, which is a fundamental principle of international refugee law, humanitarian law and law of the seas.

When appeals to solidarity and beneficence fall on deaf ears, European countries and their citizens might want to remind themselves that the EU is an organization of states which are both collectively and individually bound by international law. As a community of democratic human rights respecting states it has a duty to contribute to human rights improvements and it has a special responsibility to protect populations from gross human rights violations where their governments prove powerless or unwilling.

If there is no consensus on how to prevent these catastrophes from happening and no readiness to intervene, then western countries might as well start protecting refugees trying to make it to their gates, one person at a time. After all, it is not much more than their legal duty.

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