European Affairs

The deportation plan was signed off by politically panicking European leaders at a EU summit with Turkey late on Monday night (March 7). Faced with desperate refugee families blocked in hostile weather at Balkan borders, frantically seeking a collective way forward, leaders agreed to a last-minute Turkish proposal backed by Germany’s embattled Chancellor Angela Merkel and sprung on most of her colleagues only hours before the negotiations.

The deal entails a three-pronged attempt to stem the influx of refugees into Europe. The EU’s new resolve to deport refugees and asylum seekers away from its Greek islands is mirrored by Turkey’s newly proclaimed readiness to take them back. In exchange, EU leaders promise the government in Ankara to relieve Turkey of an equivalent number of Syrian refugees – with priority given to those who have not attempted the passage to Greece. Syrian refugees who ignore the deal and try to cross over to Greece regardless are not only to be deported back to Turkey but, in a further disincentive, to be effectively blackballed from future resettlement in the EU.

Further details to be outlined at the forthcoming EU leaders’ summit on March 18, the regular spring meeting of the EU’s national presidents or prime ministers with the EU’s Commission, Council and Parliament Presidents. The aim of the unprecedented agreement is threefold. It seeks to cut and control the number of refugees seeking and achieving resettlement in the EU. It aims to de-link asylum or refuge from the material fact of having reached EU territory. It seeks to reduce the incentive for refugees to pay smugglers for a sea voyage across the Mediterranean.

Two facts stand out. The decision to expel migrants who have made it to the EU and force them to await their further fate – or rebuild their own future – outside European territory marks the final collapse of German Chancellor Angela Merkel’s earlier efforts to persuade other European leaders to adopt a generous open-door policy towards Syrians and other refugees. As importantly in terms of the EU’s future, the deportation deal – if implemented – could mark the beginning of the end of Europe’s modern policy on asylum and refuge such as it evolved after the horrors of the Holocaust. Its fundamental approach to asylum – reach us, and your life is safe – goes back even further. It rests on a principle carried through millennia of European history, with pagan temples and Christian churches affording sanctuary and the states of ancient Greece and historic Europe opening their doors to refugees from neighboring polities.

Faced with the terrifying prospect of ongoing civil wars, bloody religious strife, state collapse and poverty in the Middle East and Africa, burdened with the knowledge that the African continent is on course for a population explosion creating dozens of millions of unemployed, EU leaders are exposed to a civilizational conundrum echoing the age of the great migration which panicked ancient Rome. They now seem to be toying with the idea of using the brutal instrument of deportation as Europe’s very own Chinese Wall.

To understand the full portent of this week’s decision, it is essential to realize how the EU’s existing asylum system works. Until now, the rule has been that no migrant – once he or she has claimed asylum or refugee status – may be expelled from EU territory while that claim is examined. In each EU member state, this process entails an individual right to judicial review under which refugees may appeal the government’s rejection of their application before an independent judicial authority re-examining the validity of their claim.

In most member states, and barring exceptional circumstances, most asylum seekers are being granted the right to stay by a judge or a Court overturning the negative decision of government bureaucrats – who often act under the explicit or implicit instruction to reject as many claimants as possible. To navigate the legal complexities, deadlines and procedural requirements, almost all EU countries have granted refugees access to tax-payer financed legal aid, allowing them to retain the services of a lawyer.

The taboo-breaking decision to expel even bona fide refugees and asylum seekers from EU territory – and instruct them to await their fate outside EU borders –may well put this whole edifice of legal protection in terminal jeopardy. On the face of it, it is hard to see how a meaningful process of judicial review and individual access to legal council can be implemented if refugees and asylum seekers have to stake their claim outside EU territory. The consequence would be clear. If the parking of refugees outside the EU, now to be tested with Turkey, were to become general policy – with member states agreeing to accept a given number of them – it would signal the end of a post-WWII dispensation where Europe handled its offer of asylum or refuge as a right to be claimed rather than as a favor to be granted.

Leading international bodies have immediately expressed their grave misgivings. Amnesty International spoke of a “death blow to the right to seek asylum”, while Filippo Grandi, the United Nations High Commissioner for Refugees, said he was ‘deeply concerned”. In the meantime, EU leaders, faced with predictions of a new influx of over a million war refugees into Europe this year, have bought themselves some political time. The EU’s forthcoming summit conveniently falls five days after a Sunday where three key regional elections will be held in Germany. It is the day when the two parties ruling in federal coalition in Berlin, Chancellor Angela Merkel’s centre-right CDU and Vice-Chancellor Sigmar Gabriel’s centre-left SPD, will for the first time be able to gauge the German electorate’s reaction to the policy of generous admission of over a million refugees with which they stunned Europe last year. Opinions polls predict a sharp rise of the anti-refugee right wing AfD party – and bad news for the federal government coalition.

Europe’s great refugee crisis has unfolded at a time when the EU is still grappling with the consequences of the narrowly averted collapse of the Eurozone, with embattled and twice-battered Greece again in the nexus of events. As the most awful bad luck would have it, it has also been a year when the UK was becoming embroiled in an increasingly heated pre-referendum debate about whether to remain in the EU or leave it – with migration the hottest and most divisive topic on the UK’s domestic policy agenda. Once the British June referendum hurdle is past, all European eyes will turn to France and its presidential elections of 2017, where the anti-migration hard-right Front National leader Marine Le Pen is now seen as a serious contender for presidential power. Meanwhile, the EU’s eastern member states are still marked by memories of their painful post-soviet economic upheaval, lingering historical resentment and decades of relative cultural isolation under the Soviet dictatorship.

This egregious concatenation has created a perfect storm that has laid bare Europe’s weaknesses and exposed Germany and its generous refugee policy to European rejection, isolation and even opprobrium. As became apparent this week in Brussels, Angela Merkel is now accepting that her attempt to move Europe to a more welcoming attitude is hopeless under the current circumstances, and that the price to pay for preserving the EU’s capacity to act may be to shift away from an asylum policy predicated on an individual, legally enforceable right to refuge towards a policy of taking in limited numbers of refugees.

If this is indeed the future, then it is one that has already been well prepared for in the past. Nato-ships have recently started patrolling to waters of the Aegean Sea; and in an operation unprecedented in nature and potential scope, a small EU armada cruises off Libyan waters, with the EU standing ready to engage in low-level warfare against people smugglers should it receive Libyan or UN authorization to do so. The EU has been engaged for many years into more or less successful attempts to bribe southern Mediterranean governments – such as that of the late Libyan dictator Muammar Gaddafi – into helping to stem the flow of refugees to Europe. Deporting refugees away from the EU back to neighboring countries however unsavory their regime while sealing the borders off with military and other means would be the crowning of a Fortress Europe policy that would at worst take its inspiration from the brutal asylum regime now enforced by Australia. The war refugees of Syria and Iraq and the countries that host them in their millions deserve better from the rich and powerful EU.

Perspectives is a periodic feature of European Affairs where members or guests discuss timely issues.

Thomas Klau is director of K-Feld, a public affairs network and former senior policy analyst at the European Council of Foreign Affairs.