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Astrakhan Mock Conference on Syrian Migrants 22.05.14
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Astrakhan Mock Conference on Syrian Migrants 22.05.14
Expert Contribution: Bruce Leimsidor
For years, Greece has been the back door for entry into the EU for migrants from central and south Asia--- primarily from Afghanistan, but also from Iraq, Pakistan, Bangladesh, and from some former Soviet central Asian republics. In the past two years, this flow has been augmented by increasing numbers of Syrians. They cross the Turkish/ Greek frontier, which had, until recent developments, been called Europe’s most porous border.
Conditions for potential asylum seekers are so bad in Greece that courts in other European countries prevent their immigration authorities from returning to Greece those migrants who have left that country and lodged asylum claims in other EU countries, as would otherwise be mandated under the EU’s Dublin II accords.
The large majority of the migrants have ben apprised of the difficulties they will encounter in Greece and enter the country without any intention of staying or going through the ordeal of applying for asylum, which now may get them interned indefinitely in a squalid holding center or even deported back to their home country, in direct contradiction, in many cases, to international law. Because of the open Schengen borders within the EU, such migrants can, at least theoretically, freely pass from Greece on to other countries.
The northern European dissatisfaction with the situation was such that there was even talk of removing Greece from the Schengen area, which, in fact, would have offered little remedy, since much of Greece’s northern border is non Schengen. More seriously, France and Germany have proposed to the European Commission that an individual EU state may unilaterally and without review, suspend the Schengen regulation if it felt itself threatened by an influx of secondary migration from another EU state. Since Schengen, however, is one of the pillars of the European Union, and suspending it for anything short of an extreme security emergency, is almost impossible, the Franco- German proposal will probably go nowhere. The situation is, however, very dangerous, and I do not want to minimize the threat that irregular migration poses for the EU.
The current solution has been to increase appreciably the Greek border patrol on the Turkish border, the construction, finished early this year, of a wall closing off the land border and forcing irregular entrants to undergo a dangerous river crossing or an even more dangerous maritime crossing, and employing the assistance of the EU’s external border patrol, Frontex, to seal the border. These extreme measures were undertaken most likely in response to the panic in northern Europe over the radically increased number of Syrian asylum seekers, almost all of which had passed through Greece and lodged claims in Germany, Denmark, and Sweden.
These actions reduced irregular crossings by 41%, but the price has been a drastic increase in cases of drowning of migrants attempting the more dangerous crossing. There have also been credible allegations of Greek border guards having pushed arriving maritime migrants out to sea. Migrant solidarity organizations have, of course, registered protests, but to little avail. Despite the awareness that many of the blocked migrants, and even many of those who have drowned, are children--- remember that most of those who try crossing are either Afghans or Syrians, and 50% of the Syrians are, in fact, under 18---, the EU seems nevertheless determined to hinder their access to Europe and possible protection.
The most obvious reason for the EU’s willingness to contradict its own legal and humanitarian principles by blocking access to asylum for substantial numbers of migrants and migrant children is, of course, the looming specter of over 2 million strong out- migration from Syria and its possible, even probable spread from the Middle East into Europe. Even if only the estimated 200,000 Syrians currently in camps and urban environments in Turkey are considered, since those are the most likely to seek refuge in the EU, there is still a threat of a substantial influx. This threat is even more serious since there are frequent reports of tensions between the Syrian migrants and their Turkish hosts, despite the Turkish camps being the best organized and most generously supplied in the region. These tensions have pushed many Syrians to undertake the perilous journey to Europe.
The UNHCR’s position on the onward migration of Syrians into Europe is somewhat ambiguous. While the UN refugee agency cannot condone blocking access to asylum under any circumstances, its official position is that the Syrian refugee crisis should remain in region, that is to say, remain in the countries bordering Syria. It has not protested the measures taken by the EU to reinforce the Greek/ Turkish border, saying simply that it does not believe that these measures will be effective.
The problem may, however, not be simply one of potential numbers. Despite the Syrian conflict’s entering its forth year, there is no clear profile of the out- migration. Neither UNHCR nor the regional host countries seem to have done much concerning RSD, Refugee Status Determination; that is to say, the migrants’ reasons for flight have not been individually examined, and they seem simply to have been accorded prima facie refugee status on the assumption that they are in flight from generalized violence. Since little examination has been conducted of their falling within the terms of the 1951 Refugee Convention, which covers only cases of persecution under very specific grounds, or even of their coming from areas specifically effected by generalized violence--- not all of Syria has been constantly under conditions of generalized violence--- it is not at all clear what type of protection they could receive as a result of individual asylum proceedings.
This lack of definition in the Syrian refugee caseload may well be a contributing factor to UNHCR’s very muted statements concerning the measures taken to reinforce the Greek/ Turkish border. As long as the Syrian caseload stays in region and is accepted by the regional host governments without detailed examination, it remains feasible for UNHCR and allied NGOs to elicit funds for their support and political support for their operations. Such may not be the case if there is an open discussion on who the migrants are, their reasons for flight, and their political alliances. Such a discussion will become much more likely as the migrants move into Europe, where, under present EU guidelines, asylum applications must be individually examined.
Moreover, flight from generalized violence, the category under which the large majority of Syrian asylum seekers could be granted protection, if examined in the strictest sense, must correspond to very specific conditions. War, or generalized violence, in addition to killing and maiming people directly, can also imperil life by destroying the sanitary facilities in a region, unleashing epidemics, or destroying crops or preventing the planting of crops, endangering life through hunger. In some cases, claimants have survived an attack but are forced to leave because the infrastructure supporting life has been destroyed. Such ancillary destructive effects of war are generally recognized in an asylum claim.
On the other hand, a protracted war inevitably has a disastrous effect on a region’s economy. Businesses are destroyed; jobs are lost; educational institutions are destroyed, and opportunities for youth are severely reduced. An essentially economically based out- migration is unleashed. Such effects, as unfortunate as they are, are generally not seen as life threatening, and asylum claims based upon the misery and dashed dreams caused by war are not recognized. In dealing with asylum claims, humanitarian need does not always correspond to grounds for international protection. A youth facing protracted unemployment, whose school has been destroyed, and who has undergone the humiliation of not being able to help his aged parents or have the material capacity to marry that his culture demands of him--- we can understand why he leaves and seeks better opportunities elsewhere. In most countries, however, he will not qualify for international protection.
Currently, there is little consistency in the EU as to the reception of Syrian asylum seekers. In Germany and Sweden, which received together about 70% of the over 20,000 Syrian asylum applications in 2012, temporary subsidiary asylum was granted almost automatically. Other EU countries have been less welcoming, and Denmark and Belgium have issued negative asylum decisions on some Syrian cases, although they have observed the general European ban on forced return of rejected Syrian asylum applicants. Those who have managed to file asylum applications in Greece have been almost uniformly rejected, and Greece has actually repatriated Syrian migrants. According to HRW, the UK has also tried to repatriate rejected Syrian asylum applicants.
It can be speculated that the apparent generosity in Germany and Sweden in granting subsidiary asylum to Syrian cases may be related to the Europe wide ban on forced returns to Syria. Since such applicants cannot be returned to Syria, it is possible that the positive decisions of subsidiary protection, which gives the beneficiary access to the labor market, reflects simply a practical way of handling the situation and not a true positive evaluation of the merits of the asylum claim.
Despite pressure from members of the European Commission and UNHCR, it is, frankly, unlikely that those countries resisting a more generous treatment of the Syrians will change course. Moreover, the generosity in Germany and Sweden, especially in Sweden, has not been without resistance, and if previous patterns are followed--- such as have been seen with Iraqi and Afghan asylum applications in those countries--- such generosity will not last. This is especially the case since there are some perfectly justifiable reasons for rejection of some, even many, Syrian cases, even for subsidiary asylum, if these cases were examined using the same criteria that have been applied for other asylum applicant caseloads.
Moreover, although it has not been frequently invoked concerning the Syrians, the EU has the legal capacity to refuse to consider asylum applications for almost all of the Syrians; The 2004 EU Procedures directive established the “safe third country” principle, giving an individual state the option of denying asylum to any applicant who had safely passed through a state outside the EU that would have offered him asylum. The EU Directive does not specify the quality or degree of asylum offered, and the prima facie temporary asylum offered by the states surrounding Syria could legitimately be invoked in denying most Syrian asylum claims in Europe.
According to reports concerning the Syrian refugee caseloads in Jordan, Lebanon, Turkey, and Iraq, there has been substantial voluntary and spontaneous temporary, and even permanent return to Syria. Moreover, even some cases that have made their way to Europe have admitted having temporarily returned to Syria voluntarily. In general, any voluntary return to the country from which the applicant has fled seriously reduces, or even cancels the validity of the asylum claim unless very specific evidence of renewed persecution or violence related victimization can be given for the renewed flight. It is not clear that this has always been the case in reference to the Syrians. Many have returned to Syria temporarily simply to visit family members or to arrange practical affairs and have returned to the country of asylum unmotivated by any specific incident involving danger.
Moreover, 70% of the Syrian migrant population in region are women and children, many of whose husbands and fathers have remained in Syria either as combatants or for labor related purposes. Other caseloads had exhibited similar characteristics, but in general the period between the exit of the various members of the immediate family is very short. In the case of the Syrians, however, is seems to be, in many cases a permanent, or semi permanent arrangement, with the head of family taking care of affairs in Syria. It is fortunately unlikely that under current circumstances in Syria such women and children would be forcibly repatriated; however, because members of their immediate household have voluntarily chosen to remain in Syria, the positive results of a closely scrutinized asylum claim on the grounds of flight from generalized violence are not entirely assured. In region, they are accepted as prima facie refugee cases; if they moved to a situation in which their cases would be individually examined, international protection may not be granted.
Another reason to doubt the strength of claims of flight from generalized violence on the part of the Syrian refugees in region is the very low educational and income profile of the male heads of family. While there are a few highly educated and previously economically stable heads of family among the refugees, a recent study conducted among the caseload in Jordan revealed that over 70% had less than a high school education--- well below the Syrian national average--- and most had earned at or below the median income in Syria. While the economic hardships the migrants endure in Jordan indicates that the migrants had not left Syria for economic gain, it does indicate that those who opted to leave Syria has less economically and socially to lose by leaving than the average Syrian. That a majority of those who had much to lose opted to remain in Syria, despite the violence, indicates that remaining in Syria is, in fact, a real option, which, of course, weakens the strength of an asylum claim on the basis of generalized violence.
Moreover, the sources for the numbers of fatalities caused by the Syrian war, 75,000- 100,000, are almost exclusively FSA (Free Syrian Army), and thereby most likely inflated, since it is generally agreed that it is the rebels’ interest to report higher fatality figures. Even Middle Eastern reporters sympathetic to the rebel cause have stressed that these figures have included a large percentage of combatant deaths counted as civilians, and that the actual civilian fatality toll was much lower. In addition, the fatality count was not at all equally distributed across the country. A carefully examined asylum claim on the grounds of generalized violence would have to show that the applicant was at the specific location of the violence at the time that violence occurred, and that he had no option but to flee the country. In short, it is not at all clear that all such applications, if submitted in a carefully examined context, would succeed.
Even more important in reference to the possible qualification problems of Syrians for refugee status in Europe is the highly politicized and even militarized situation of many of the migrants, and the admitted inability of UNHCR to separate militarized and combatant migrants from the general refugee populations in neighboring countries, most particularly in Turkey.
These include child combatants, who have either completely voluntarily, or at the urging of politicized or combatant family members, joined military units. Although there are frequent reports of child combatants in Syria, there is little evidence of coercion. FSA commanders have actually sent some very young volunteers home, and it is generally the practice to release minor combatants at their parents’ request. Therefore, at least technically, both the child and his parents should be excluded from international protection. The parent who encourages or even allows his child to become a combatant is a de facto recruiter of a minor, and technically guilty of a war crime under international law.
UNHCR and international asylum law insists upon the civilian and neutral nature of asylum. In the case of the Syrians, this issue is particularly serious given the evidence of jihadist factions within the FSA and Alawaite and Hezbollah groups allied with Syrian government forces that have been credibly accused of having committed war crimes.
As noted by a recent study funded by the Norwegian Foreign Ministry, the problem of the militarization of the Syrian migrant population, which has been generally acknowledged, has received little attention or discussion. Since this migrant population has already created a good deal of tension among the host population in southern Turkey primarily because of their militarization, it is not unlikely that some Syrians with a combatant background will migrate further into Europe. This situation is bound to cause complications in European refugee adjudications. Although forced return to Syria even for militarized asylum applicants is likely to be viewed, at least in the immediate future, as refoulement, and returning them to Turkey would be politically unfeasible, according refugee status to such applicants may be problematic.
UNHCR has been in discussions with various countries, including Germany, concerning resettlement out of region for some of the most vulnerable cases. However, cases accepted for resettlement generally must correspond to the norms for asylum in the receiving country, and most countries require cases that correspond to the persecution profiles of the 1951 Geneva Convention; cases in flight from generalized violence are accepted only if they have been unable to return to their country of origin for a very extended time--- not just years, but rather decades.
The reason for the prejudice against generalized violence cases in resettlement is that such cases, when processed in the country of asylum, under EU refugee qualifications directive, would normally receive only subsidiary, or temporary asylum, while resettlement is considered to be a permanent solution. Hence, a war refugee in flight directly into the EU would receive only a 3 year subsidiary asylum, with restricted social benefits, while the same case, processed by UNHCR for resettlement would receive permanent asylum with full social benefits.
For this reason, Germany has agreed to resettle only 5,000 of the 10,000 Syrians originally requested by UNHCR. Moreover, the resettlement will be restricted to relatives of Syrians already in legal status in Germany and wounded people needing medical attention. In short, despite the apparent generosity of the Germans concerning Syrian asylum applications lodged in Germany, they have agreed to the smallest and most restricted possible contingent of Syrians to be resettled. Moreover, it seems that the terms of the resettlement will be more restrictive and even time limited, which is quite extraordinary for UNHCR resettlement programs. Clearly, the Germans have made the smallest and weakest resettlement commitment to UNHCR that they could have gotten away with.
Given these situations, it is not difficult to understand why the Syrian refugee influx into Europe has caused unease above and beyond the question of numbers. Although the numbers of potential Syrian migrants into Europe are staggering, it is perhaps of even greater concern that since the refugee pool in the Middle East has been accepted prima facie--- without detailed examination of their cases and reasons for flight--- we really do not know who these people are, and there are good indications that many of them may not conform to the conditions for asylum set forth in prevailing European asylum instruments.
Date: 2014-12-22; view: 943
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