Systemic legal issues for refugees in Europe and affected by Europe globally
A list of in-depth sources with connecting notes about the major systemic legal problems confronting refugees as they try to reach a place of safety.
The major issues are in order of encounter from a refugee’s point of view.
- Non-entrée regime vs. Non-Refoulement
- Turkey, Lebanon and Jordan used for externalisation of border control
- Non-entrée is incompatible with Non-refoulement
- Extraterritorial Scope of Non-Refoulement
- Responsibility: infinite and proportionate levels
- Right to Leave
- Visas for Asylum as an obligation
- Non-Activation of the Temporary Protection Directive
- Temporary Protection vs. Relocation
- EU-Turkey Statement
- Prejudicial and Legally Incorrect Terminology in the Statement
- The Political Fiction of Turkey as a Safe Third Country
- The Political Motive of ‘the deal’
- Inadequate Legal Information to asylum seekers
- Key Problems of the legal aid system in Greece
- Lack of information on Admissibility procedure
- What constitutes Adequate and Early Legal Aid?
- How to Scale Up Adequate and Early Legal Aid Efficiently
- Psychological Impact of Asylum Procedures and Legal Aid System
- Recommendations for Improvement
- Family Reunification Problems
- Dishonest Misapplication of Statuses
- Interviews which do not fulfil “individual objective and impartial” and practically no appeals process now
- Inadequate questioning
- Maladministration of Appeals procedure
- Degrading Reception Conditions, Delayed Asylum Procedures and Coerced ‘Voluntary’ Returns
- Psychologically Vulnerable Returnees
- Degrading and Deindividuating Reception Conditions and Procedures
- Penalising Asylum Seekers for Unauthorised Entry or Stay
- Ethical Reflections on Where We’ve Come to and Where We’re Going
- ‘Sovereignty’ and ‘Democracy’ contested meanings
- Foundational Philosophy of Human Rights
- Framing Evokes Moral Values and Constructs Authority
- The State’s Contingent Authority
- The Eudaemonistic Principle as a Tool for Analysing Political Motives and Actions
- The Struggle & the Choice
Introduction: a brief statement of my conclusion
My own conclusion is that the systematic human rights abuses by EU governments at every stage of refugees’ journeys while they are trying to reach a place of safety and the opportunity to restore hope and autonomy is undermining the substantive objectivity of rule of law processes, and as such is a threat to justice for everyone, not only abusive to refugees.
I am aware this conclusion may sound on first impressions hyperbolic, but when you have seen the effects on people of all the systematic human rights abuses I explain below, and how the performance of illegalities by governments has become normalised and that is changing public moral attitudes to non-citizens and social norms about inherent human dignity and equal and inalienable rights, I really think it is not an exaggeration at all.
Through the article it will become apparent that there is a growing abyss between international law and current government practices. Post-WW2 international human rights law conventions such as the UDHR, ECHR and the 1951 Refugee Convention are not naively idealistic, as governments in practice now treat their claims of ethical and legal obligations on them, but their universalist foundational philosophy and particular positive law formulations were born out of the apocalyptic realisation of how impersonal evil can become with a highly bureaucratised kind of State and highly consumerised society. Specifically, the ECHR was written by David Maxwell-Fyfe — a former Nuremberg Trials judge, and Jacques Maritain, a Catholic humanist philosopher who was involved in advising post-war governments.
The UDHR and ECHR prefaces conceive of ‘human rights’ and ‘democracy’ differently from how they are being practiced now — governments now seem to treat ‘human rights’ as nuisance legal technicalities which they have to find a formally legal way around or through in order to represent popular opinion and majority will; ‘democracy’ in the ECHR, however, is defined with constitutional legal constraints to ensure minorities’ and non-citizens’ human rights should not be trampled on by majoritarian democracy, because human rights are universal, recognised, not granted, declared, not merely posited by authority or social convention, and, as such, are ethically valid independently of any popular opinion or majority will.
I will return to these themes of reflection at the end in more depth.
Non-entrée regime (‘no entrance’)
For almost all refugees globally there is no legal route to enter the territory of any country where they will really be safe. Non-entrée has become the global norm, following the EU’s example, more than protection responsibilities, and, in some areas, due to provable pressure and incentives, other States are applying increasingly harsh, often lethal, means of enforcing non-entrée policies in order to “protect” EU borders externally by keeping people back.
Turkey, Lebanon and Jordan used for confinement
Speaking just about Syrian and Iraqi refugees who I know the most, Turkey, Lebanon and Jordan, which host the most Syrian and Iraqi refugees are very difficult or almost impossible to enter as a person seeking sanctuary and obviously likely to stay long-term now. For Turkey, you have to be an emergency medical case, unconscious; not even survivors of the Khan Sheykoon sarin attack who were conscious at the time of requesting medical evacuation were admitted, and some died waiting as a result. For Lebanon, it is extremely difficult as a Syrian to get a residence permit now; I know because I’ve helped several friends to try.
Without legal status, you are at risk of exploitation because you cannot seek police protection, and if caught doing something like operating a business which competes with a Lebanese business, you are likely to be forcibly expelled back to Syria and for some that means death by torture, as that is how the regime deals with anyone suspected of political opposition.
Jordan has absolutely closed their border to Syrians, even emergency medical cases. Until a couple of months ago, people in e.g. Rukban camp on the Jordanian border were only able to get supplies at extortionate prices smuggled in by mafia, and now only World Vision has access. Recently, Jordan has forcibly returned thousands of Syrians for no sensible reason.
Lebanon is discussing a forcible collective expulsion of Syrians back to, so far entirely mythical, “safe zones”, patrolled by Hezbollah. Most of the Syrians in Lebanon fled the regime and Hezbollah, so areas under regime control are absolutely not safe for them.
All three major transit countries for Syrians have major problems with refoulement (forcible return, expulsion or refusal of admission to refugees), with refusal of access to asylum procedures or incredibly long waits for even registration (UNHCR first registration appointment in Turkey is now in 2021), degrading and inhumane reception conditions in some areas (that is not as bad as long-term lack of access to asylum procedures — people can endure bad living conditions if they have some realistic prospect of hope of getting their lives back eventually, but without genuine, fair and efficient, asylum procedures, there is no hope of restoring normal, independent life.)
The legal routes to Europe and the USA that nominally exist are for such tiny, token numbers of people relative to how many people need resettlement, and so punitively slow and uncertain to get a resettlement place even if you’re clearly eligible, and wait the usual 6 years or more, that for most people UNHCR Resettlement, Humanitarian Admission and Humanitarian visas do not present a realistic viable alternative in comparison to the “illegal” routes.
Non-entrée in practice is incompatible with non-refoulement
‘Non-refoulement’ means the legal principle that people who are likely to be in need of international protection (including humanitarian protection), should never be forced or coerced to return or expelled to a country or territory where they are not safe, nor should they be forced to remain in such an area.
Non-refoulement is the essential principle in the 1951 Geneva Convention on Refugees and all subsequent international refugee law, but, it is currently being interpreted in practice as though it only meant an obligation to people who are now on the State in question’s territory, and as if exercising effective authority or control extraterritorially to prevent people from approaching the frontier to seek asylum is not refoulement, but legally it absolutely clearly is refoulement. To respect non-refoulement simply requires admitting people in need of protection to the territory, not doing everything possible to prevent entry and saying only then you can’t forcibly expel them. Non-entrée policies are clearly incompatible with non-refoulement.
Non-Refoulement in a World of Cooperative Deterrence, Thomas Gammeltoft-Hansen and James C. Hathaway
“Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations.
As the early generation of non-entrée practices — visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence — have proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate cooperation have emerged in which deterrence is carried out by the authorities of the home or a transit state, or at least in their territory.”
Infinite human responsibility and a State’s or a Union of States proportionate share(s) of that responsibility
I consider ethically that there are two levels of responsibility relevant here: our fundamental responsibility as human beings to respond justly to each other, which is infinite, as Levinas explained— even tho our capacities to respond and our lives are finite, and then the States we create that represent us collectively, and which are supposed to coordinate and organise our societies to function better and more efficiently, have at least a proportionate responsibility to act up to the objective limits of our capacities to fulfil as much as possible of our infinite human responsibilities to each other.
Europe is not accepting its proportionate share of responsibility for the 60 million forcibly displaced people globally now. Turkey has the highest number of refugees hosted of any country in the world now — over 3.6 million, with 1/18th of the money per person hosted compared to Europe.
Accepting refugees or not, or how many refugees, should not be a question of their economic utility to us.
Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.
( Immanuel Kant, Grounding for the Metaphysics of Morals, 4:429)
Refugees’ usefulness or otherwise to us should not be the deciding criterion. In addition, refugees’ are mostly very beneficial for Europe, especially as we have an ageing demographic and rural depopulation problems, but we are human beings, and as humans we have inescapable ethical obligations to each other. The nature of human responsibility is fundamentally infinite.
Before [the needs of people] responsibility is measured only objectively; it is irrecusable. The face of the other opens the primordial discourse whose first word is obligation, which no “interiority” permits avoiding.
Emmanuel Levinas, Totality and Infinity: an essay on exteriority, 1961,
from the chapter “Ethics and the Face”, pp.197–201.
I do not believe we have the right, ethically, to set any arbitrary limits on how many people in need of international protection we will accept and protect. How can we possibly justify ‘owning’ the land we were born on to such an extent of forcing others to remain where they may be killed, or imposing on people to stay and not to move or try to migrate but to live without hope forever? Attributing moral significance to Nation-State borders is absurd.
The fact there is a huge number of people now globally needing protection and resettlement is not their fault. It’s probably much more our fault than theirs actually, because we continue to do business with tyrants for so long, disregarding injustice and inequality as long as it profits us and is out of sight, until injustice explodes into conflict, then shift all the blame onto the client regime we’ve been dealing with for decades as “a partner in stability” (“stability”, i.e. tyrannical repression).
Arabs must not dream of freedom
Were popular revolutions much easier in the past? Were people able to take their rights into their own hands in days…
But whoever’s fault or no-one’s fault it may be this time, the fact is now a huge number of people need protection and resettlement, and we have the greatest capacity to resettle and integrate people. We have so far accepted (begrudgingly) 0.2% additional population of refugees since 2014, compared to Lebanon’s >25% of their total population. We have accepted the fewest, we have the most money available to receive and integrate people, but we always complain the loudest.
UNHCR: Extraterritorial Scope of Non-Refoulement
“Governments should “…ensure […] that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution.”).(1)
“In determining whether a State’s human rights obligations with respect to a particular person are engaged, the decisive criterion is not whether that person is on the State’s national territory, or within a territory which is de jure [‘de jure’ means ‘in law’] under the sovereign control of the State, but rather whether or not he or she is subject to that State’s effective authority and control.” (2)
“it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”(3)
(1) Resolution (67) 14 on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 June 1967, para. 2, cited in http://www.unhcr.org/4d9486929.pdf
(2) UNHCR Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, paragraph 35 and ibid. http://www.unhcr.org/4d9486929.pdf
(3) Human Rights Committee in Lopez Burgos v. Uruguay, U.N. Doc. CCPR/C/13/D/52/1979, 29 July 1981, para. 12.3; and Celiberti de Casariego v. Uruguay, U.N. Doc. CPR/C/13/D/56/1979, 29 July 1981, para. 10.3, cited in http://www.unhcr.org/4d9486929.pdf
Council of Europe, the Right to Leave
“The measures of externalisation of EU border controls on persons are carried out in conjunction with the state authorities of those territories in which the controls take place. Thus the authorities of third states change their rules, regulations and practices in order to assist the EU in its objectives regarding controls on persons. However, these modifications by third states to aid EU objectives may result in human rights violations, in particular of the right to leave a country, including one’s own, the prohibition of collective expulsion and the right to seek and enjoy asylum.[…]
The Strasbourg Court noted in Hirsi Jamaa that the human rights abuses that the Italian authorities carried out in respect of collecting from the sea and returning to Libya the individuals concerned, took place, according to the Italian Minister responsible, in the context of bilateral agreements on border controls between Italy and Libya. […]
There are four main EU border control externalisation measures which have the effect of hindering people from leaving countries if the destination is towards
– carrier sanctions on transport companies linked with document controls;
– readmission agreements;
Syrians and people from other countries of origin which produce high numbers of refugees are generally barred from all short-term visas, because it is expected they would claim asylum; i.e. the intent of refusing the visas is to prevent people approaching the border or entering the territory in order to preclude them from applying for asylum.
Accessibility of transit zone asylum procedures has been practically minimised by EU member states. Nominally this way of approaching the border to seek asylum still exists and is legal, but try it out, try and find a way to access it. In my experience, it takes a small team of people very knowledgeable about the law and a complicated spreadsheet to scrutinise all the possible routes to work out which might work, and an asylum lawyer prepared at the receiving end.
Visas for asylum and humanitarian visas — very few are issued, applications are often rejected arbitrarily. The CJEU recently ruled art.25(1) CCV is discretionary, despite the wording of the article itself saying “because of international obligations”. (See below on Humanitarian Visas as obligatory.)
UNHCR Resettlement — punitively slow and insignificant number of places available compared to needs. Priority is given to specially vulnerable cases, meaning that young men who are most often politically targeted for persecution mostly will never get UNHCR Resettlement, as long they wait.
‘Humanitarian’ admission schemes are only for specially vulnerable people — and only a token number of places. The main effect globally is to reinforce the changing of social norms to see asylum as just a ‘compassionate’ grant and not an ethical and legal obligation as a matter of justice.
The right to protection from refoulement is effectively meaningless unless it is conceived of as a obligation on States to allow and to positively enable access to the territory for people likely to be in need of protection.
II.2.2 Access to Territory and Protection at Sea
The Refugee Law Reader: Cases, Documents and Materials (7th edition) is a comprehensive on-line model curriculum for…
Visas for asylum as an obligation
Asylum Visas as an Obligation under EU Law: Case PPU C-638/16 X, X v État belge (Part I) — EU…
By Dr. Violeta Moreno-Lax , Lecturer in Law, Queen Mary University of London This is the first part of a two-part blog…
The Advocate General of the CJEU and the European Parliament Civil Liberties and Justice committee concluded art.25(1) CCV is obligatory, but the CJEU decided that applying the article is discretionary, even though the wording of the article itself says “because of international obligations”.
CJEU — Judgment C-638/16 PPU X and X, 7 March 2017 | European Database of Asylum Law
The CJEU ruled that the situation at stake fell outside the scope of the Visa Code, even if formally submitted on the…
Which is even stranger considering that in a previous CJEU case the court found that Article 25 CCV can be obligatory in cases when not issuing a visa would breach the State’s international obligations.
“In its judgment Koushkaki (C-84/12), the CJEU clarified the grounds to refuse visa applications made by potential asylum-seekers. Most importantly, the CJEU held that the competent authorities are not allowed “to refuse to issue a visa unless one of the grounds for refusal listed in Articles 32(1) and 35(6) of that code can be applied to the applicant” [para 65]. With this, the CJEU explicitly stated that the grounds to refuse visa applications are exhaustive. As further clarified by European Law expert Professor Steve Peers, the CJEU in effect ruled that Member States are obliged to issue a visa if the visa conditions are satisfied. Importantly, these conditions are exhaustive.
7. This landmark Koushkaki judgment applies similarly to Article 25 of the Visa Code. In particular, Article 25(1) of the Visa Code explicitly provides for the issuance of a visa with limited territorial validity when the Member State considers it necessary on humanitarian grounds to derogate from the visa entry conditions as laid down in the SBC. There is therefore an obligation on Member States to issue a humanitarian visa, taking account of the wording of Article 25 of the Visa Code and, most significantly, the Koushkaki judgment. Article 25 of the Visa Code is exhaustive in formulation.
This analysis is based on the textual and teleological interpretation of the Visa Code, as clarified by the CJEU in Koushkaki.
8. In this particular case, the wording of Article 25 (1)(a) of the Visa Code ´when the Member State considers it necessary´ should not be understood as affording Member States a degree of discretion. As clarified by Steve Peers, “the binding nature of the relevant international obligations, along with the EU Charter of Fundamental Rights and the use of the word ´shall’, override the discretion suggested by the words ´consider it necessary´”.2 In this situation, the obligation to provide protection overrides this apparent degree of discretion. Nevertheless, Member States are afforded a degree of discretion in other cases. For example, a Member State can question the necessity of a visa application when an applicant, who has been unable to meet the relevant conditions, would like to visit his hospitalized mother.”
(Summary from unpublished Brief written by a lawyer working for DRC.)
CJEU judgment in Case C-84/12 Koushkaki, 19 December 2013 | European Database of Asylum Law
(Area of freedom, security and justice — Regulation (EC) No 810/2009 — Articles 21(1), 32(1) and 35(6) — Procedures and…
Humanitarian Corridors scheme: a use of Humanitarian Visas whereby a group of charities, initiated by Communita de Sant Egidio, have organised hosting arrangements and funding for 300 refugees to come to Italy and 600 to come to France, agreed with the Italian and French governments, is a hopeful development, altho small so far:
Humanitarian Corridors: A Tool to Respond to Refugees’ Crises
Guest post by Alberto Mallardo . Alberto is working at Mediterranean Hope , a project of the Federation of protestant…
Article 25 of the Community Code on Visas provides the legal basis for both Humanitarian Visas and Visas for Asylum in EU member States’ national laws.
Refusal to acknowledge the mass influx and activate the Temporary Protection Directive
The appropriate legal framework for responding to the mass influx of mainly Syrian, Afghan and Iraqi refugees since 2015 was and still is the Temporary Protection Directive 2001.
The law lacks a sufficiently objective definition of a “mass influx” — it’s defined as “a large number” (art. 2(d) TPD2001), which leaves the activation of the law entirely at the discretion of executive government, including the EC. That is how the European Council and the European Commission totally avoided applying the law made jointly by them and the European Parliament.
The Missing Piece in the European Agenda on Migration: the Temporary Protection Directive
Meltem Ineli-Ciger, PhD Candidate, University of Bristol Law School The EU's Temporary Protection As for the recent…
Why is the Temporary Protection Directive Missing from the European Refugee Crisis Debate?
Europe is in crisis. Over 475,000 asylum-seekers have arrived by sea across the Mediterranean this year alone, with 84…
The Temporary Protection Directive has a twofold purpose:
- To ensure minimum standards of reception and asylum procedures in the event of a mass influx of displaced persons;
- To promote responsibility sharing between Member States.
Instead of activating the Temporary Protection Directive, the European Council of heads of State and heads of governments created the Relocation Decision of September 2015. Both the TPD and the Relocation Decision were supposed to be implementations of art.78(3) of the Treaty on the Functioning of the EU, which is the current constitution, also known as the Lisbon treaty.
But the Relocation Decision dropped the first part of the TPD’s purpose.
Temporary Protection vs. Relocation
The TPD was designed to ensure that even in a mass influx situation reception and asylum procedures would not have to fall below standards set in the Reception Conditions Directive 2013 and the Asylum Procedures Directive 2013 (recast), and to share responsibility for doing that among EU m/s.
The Relocation Decision was only about “burden sharing” with Greece and Italy, not about ensuring asylum seekers’ rights. Hence, Relocation has been treated as just a discretionary grant to the refugees who benefited, and not as a measure ensuring rights are upheld even in a stressful situation.
Therefore it was also seen as acceptable for Art3(2) of the Relocation Decision to limit eligibility for Relocation by nationality, which is discriminatory. Relocation is too big a benefit compared to staying in Greece as a refugee to distribute it in an arbitrary or discriminatory way. Preventing relocating people whose asylum claims might likely be later found to be unfounded and incurring more costs in returning them is a legitimate objective, but, permanently excluding people by nationality was disproportionate to that legitimate objective, when they could instead apply relocation with a positive presumption in favour of applicants from countries of origin with an asylum acceptance rate across the EU of >75%, as in the current legislation, but other people when found eligible for asylum then also refer them for relocation after their eligibility assessment has a positive decision.
The mass influx was only acknowledged in a leaked policy note in Feb 2017, which proposed even more extreme systematic violations of human rights targeting refugees.
Statewatch News Online: Refugee crisis: France-Germany Note
The draft document suggests that there would be no "mass expulsions" breaching human rights law, but the plan appears…
Ignoring the Temporary Protection Directive and hurriedly substituting the Relocation Decision and then the EU-Turkey Statement was a catastrophic system failure in terms of Europe’s human rights ethical and legal obligations. The system failed not because of the number of people or lack of resources allocated or applied, but due to a constitutional failure. The separation of powers principle was broken, leaving years of research, consultation and deliberation work in the Parliamentary committees that worked on the Temporary Protection Directive wasted.
Why do we even have a parliament and a judiciary if as soon as the things the legislative framework was designed to deal with occur, the executive government bodies can just ignore and override years of legislative work, and then totally avoid accountability even to the judiciary? Apparently in fact at EU level we only have executive government bodies with actual decisive power, and the legislative and judicial branches are just ornamental features.
I’m not covering non-compliance with legal standards of reception conditions here so much because others have done that before (references below under Coerced ‘Voluntary’ Returns) and because degrading reception conditions are more visible already, but I think most people not so closely involved with refugees don’t usually realise how much difference to people’s lives the quality of the asylum procedures actually makes to them. So next we’ll look at inadequate legal aid through the procedures.
The EU-Turkey Statement is a press statement by the heads of state and heads of government of the EU and Turkey published by the European Council on 18 March 2016.
EU-Turkey statement, 18 March 2016
Today the Members of the European Council met with their Turkish counterpart. This was the third meeting since November…
It has been treated since as a Council Directive and as an international treaty but it never had any legislative process as it should have according to Art.218 TFEU
Oral question with debate — Legal nature and binding nature of the so-called ‘EU-Turkey Agreement’…
According to the Lisbon Treaty, an international agreement having an impact on ‘ordinary’ EU legislation should be…
The EP LIBE policy recommendations which were ignored —
EU-Turkey Statement having actual effects as though it was legislation.
AIDA 2017 Update: Greece
The updated country report on Greece provides a thorough analysis of the transformation of the Greek asylum system in…
In CJEU C-638/16 PPU X and X, 7 March 2017, the court accepted the European Council’s argument that it was not an administrative act of the European Council but of the member States acting jointly in but not as the European Council, even tho it was subsequently published by the European Council, and therefore the CJEU has no jurisdiction to hear the appeal case. That ruling is being appealed and the result is due in a couple of months.
CJEU — Judgment C-638/16 PPU X and X, 7 March 2017 | European Database of Asylum Law
The CJEU ruled that the situation at stake fell outside the scope of the Visa Code, even if formally submitted on the…
It wasn’t me! The Luxembourg Court Orders on the EU-Turkey Refugee Deal
It wasn’t me! This was in essence what the European Council, alongside the Council and the Commission, answered to the…
The press statement was also conveniently vague and incoherent, appearing to contradict itself from paragraph to paragraph, which allowed the European Commission extraordinarily broad latitude to interpret it subsequently, effectively to secondary legislate on it.
Prejudicial and legally incorrect terminology
The EC and European Council’s terminology of calling asylum seekers who have fully registered their claims in an EU country “irregular migrants” is legally incorrect, according to paragraph 41 of the CJEU’s decision in Case C‑357/09 PPU Kadzoev, as explained by Prof. Steve Peers here.
The only plausible motive for using the incorrect term “irregular migrants” to refer to fully registered asylum seekers was to prejudicially de-legitimise their claims in the ‘court’ of public opinion in order to justify the political decision to just get rid of them “by any means necessary”.
The mechanism in paragraphs 1–2 amounts to a penalty against asylum seekers for entering without authorisation, in violation of Art. 31 of the 1951 Refugee Convention.
“Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect.”
In the context of what they knew or should have known at the point of deciding on the EU-Turkey statement, the section of the EU-Turkey Statement above is clearly amounts to an instruction to commit refoulement.
The political fiction of Turkey as a ‘safe third country’
Most of the references for this section have already been covered above under Lack of information to applicants on admissibility procedures, but one more from the International Federation for Human Rights (FIDH), representing 168 organisations, that provides a summary:
The political motive
The reason that the European Council and European Commission decided to generally presume Turkey is a Safe Third Country in terms of art. 38 of the Asylum Procedures Directive 2013 (recast) was not because they believed or argued that it was ever plausibly objectively true.
European Commission officers effectively said (I paraphrase, with rage), in the Greek Asylum Service conference on 9 May 2016, that they considered it better to sacrifice the human rights of then about 60,000 refugees in Greece, and probably thousands of lives of refugees trying to seek safety in Europe, in order to protect liberal democratic governments and political parties from the nationalist populist insurgency, which was de-legitimising especially German and more liberal northern European governments. Scapegoating and sacrificing the refugees, and effectively accepting the agenda and assumptions of the neo-fascist insurgency, it was the logic of Caiaphas:
“You know nothing at all! You do not realize that it is better for you that one man die for the people than that the whole nation perish.” (John 11:50)
Human sacrifices made for political stability. The Scapegoating Mechanism again.
Realistically it could not and it did not actually work — seeking to appease the neo-fascist hybrid insurgency aiming to reach a stable compromise could not possibly work because the issue was for the neo-fascists and other populists only ever a rhetorical and spectacular tool for de-legitimising mainstream liberal governments and changing social norms towards their nationalist authoritarian alternative moral system; compromising with them has in fact only emboldened their demands and strengthened their position.
Inadequate legal information
APD2013r Art.8 “Member States shall provide them with information on the possibility to make an application for international protection”
Art.8 Asylum Procedures Directive 2013 (recast) http://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013L0032
Greek Law 4375 art.44(2): “Applicants, following a relevant request, and in the context of the [asylum] procedures in Chapter C, shall be provided with legal and procedural information free of charge on the procedure concerning their case.”
Refworld | Greece: Law No. 4375 of 2016 on the organization and operation of the Asylum Service…
This is an unofficial translation.
Asylum procedures are covered in Section C.
In practice, official legal aid provision in Greece is minimal, and was only made available 3–4 months later after the EU-Turkey Statement came into effect. As legal information (beyond a trivial level of info as e.g. on the poster above) is not proactively offered, those who actually most need legal help and tend to be the least aware that they need it don’t tend to ask, and those who understand their legal situation relatively better realise that they should seek help. Quality of legal advice is inconsistent, and there is no monitoring or accountability mechanism.
Six key problems in system for provision of legal aid
- Information is only provided if proactively asked for, which tends to make it least accessible to those who most need it.
- Information is only provided on the procedures, not on the criteria or how to credibly substantiate a claim.
- Legal aid is provided too late in the procedures to be most useful.
- Admissibility is not an intuitive concept — it was not reasonable to expect that people would just naturally know what is relevant to say in an admissibility interview without being proactively informed and assisted to prepare.
- Individual casework alone model of providing legal aid could not possibly scale up enough. Group presentations and videos are necessary.
- Psychosocial and legal counselling needs are really inseparable but the current system does not account for this fact.
Official legal aid implementing partner NGOs have at least until now prioritised support for appeal cases and said they lack resources to provide more legal aid at earlier stages, but since the appeals acceptance rate has dropped 97% between the old and the new appeals committees, only trying to help people at appeal stage is really too late.
Asylum seekers really need information and assistance to prepare before their interviews. Accounting for the fact that the quality of interviewing is also poor now (see below, especially ECCHR report), people need to be well prepared enough to know what they have to say in detail even if the interviewer does not ask about everything as they should.
Lack of information to applicants on Admissibility criteria
Admissibility criteria are less intuitive and less widely known generally than eligibility criteria. There are five criteria for substantiating admissibility against application of the Safe Third Country concept, with the standard definitions of these terms as elsewhere in EU asylum law:
- well-founded fear of persecution in the transit country
- realistic risk of serious harm in the transit country
- risk of refoulement in the transit country
- lack of access to asylum procedures and the rights which legally attach to asylum status according to the 1951 Refugee Convention
- lack of a sufficient connection to the transit country that would make it reasonable to expect the person to live there safely and resettle there.
Turkey generally for asylum seekers does not objectively meet any of these legal criteria defining a ‘Safe Third Country, not even plausibly close. I repeat because I think it’s important: the EC and EuCo never even attempted to argue that Turkey really is objectively a Safe Third Country; they just deemed it to be so by authoritative executive fiat.
EU/Turkey: Migrants are not goods one can barter
Paris, Brussels - FIDH is appalled by the cynical 'migrant swap' announced by EU Heads of State and Government and the…
168 international Human Rights organisations members of FIDH came out condemning the deal and particularly the false designation of Turkey as a Safe Third Country, but the EC and EuCo never even saw fit to respond substantively to their reports showing that it was objectively untrue.
There were many human rights NGOs reports about the factual and legal situation for refugees and asylum seekers in Turkey around the time of the EU-Turkey Statement. (The following subsection overlaps with the subject of the EU-Turkey Statement section of this listicle.)
The most comprehensive report from that time is:
The one we found most practically helpful for us in assisting people with their interview preparation was:
Desk research on the application of the 'safe third country' and 'first country of asylum' concepts…
ECRE and the Dutch Council for Refugees published today a note based on desk research addressing the question of…
Folders full of more evidence reports:
Amnesty has reported on the appeal cases now before the Council of State, which is the supreme court of appeal in Greece, and what stands out to me in their reports is that all the appellants I’ve read about or heard from so far spontaneously expressed their “bewilderment” about what the admissibility interviews were about — they had no idea even that the interviews they were having were admissibility and not eligibility interviews — i.e. they did not have the legally required information “on the procedures”, so did not have a fair opportunity to represent themselves.
The EU-Turkey deal: Europe's year of shame
"I sleep on a mattress on the floor in a cell with five other people," Noori told me last December when I met him in…
What constitutes adequate and early legal information and assistance to prepare for interviews?
An adequate interview preparation session takes about 1–3hrs per person, and more time in complicated or psychologically vulnerable cases:
- Admissibility criteria
- Eligibility criteria
- How to substantiate credibly (5Ws — what, when, where, who, why)
- Discuss supporting evidence
- Practice interview with feedback
- Help to prepare asylum claim statement
- Legal submissions incl. Brief/ Note Juridique and supporting evidence
If this is done before there’s a problem, it’s much better for the asylum seeker and less expensive than doing more appeals than would be necessary.
Irish Refugee Council’s research on the effectiveness of Early Legal Advice in improving fairness for applicants and improving efficiency of the system:
Irish Refugee Council best practice guide on providing Early Legal Advice:
How to scale up adequate and early legal information efficiently to a large population, even in a mass influx and with few lawyers and relatively little resources
Funnel model — gradual stages of information from general to individual:
- Start with general information presentations to groups, provided by lawyers or legally trained specialist volunteers, and-or by circulating videos, first on an overview of the procedures system so people can recognise what stage they’re at so they know which stage to prepare for next, and then detailed group presentations on how to prepare for each stage, particularly: admissibility, eligibility, family reunification, appeals;
- Advise applicants to write their asylum claim statements in advance of their interviews, and get lawyers and specialist volunteers operating under lawyers’ supervision to help them clarify and complete their statements — basing the interview on a prepared written statement is both fairer for the applicant and more efficient for the interviewer;
- One-to-one or family groups legal counselling — not limited to appeal stage, but the earlier legal aid is provided, the greater the potential benefit to the applicant and the less likely that more intensive and expensive legal aid will be needed for them later.
This goes from the most general down to most individual. The conventional individual casework model alone with >42,000 asylum seekers in Greece now, and >60,000 at the peak just after the borders closed, could not possibly scale up enough without an utterly unfeasible number of lawyers and interpreters. Group presentations and videos are essential.
It is better to give people more complicated information early enough in advance and let them realise that they don’t understand enough what’s relevant to say in their interviews but they still have enough time to ask for help than for them not to even recognise that they need help til it’s too late.
I do not buy the ‘it’s too complicated, you’ll just confuse them” excuse at all. Just start earlier.
Psychological impact of the current asylum procedures
Doing the job right first time — providing adequate legal information and assistance means that people who are actually eligible are much less likely to need to appeal, which is fairer, avoids unnecessarily retraumatizing them and prolonging their recovery by giving them grounds to generalise that their new country feels threatening or anxiety-provoking too, and also makes the system more efficient and less expensive to administer.
Psychosocial support / counselling should be provided together with legal counselling — the two are really inseparable needs. Delaying the asylum interviews — hearings, altho legally the validity of the final decision is more important than the duration of the procedure, waiting what feels like forever to be listened to is not okay psychologically — traumatised people need to be heard, and fairly promptly after arrival. This should be accounted for better in reforming the registration interview procedure.
Breaking people by imposing chronic anxiety on them through unbearably slow procedures which, the more uninformed you are will be perceived as even more unpredictable and uncontrollable than they actually are, so maximising anxiety, before eventually granting them asylum status and then suddenly expecting them to socially integrate and become economically independent as fast as possible, is an irrational way to proceed.
Recommendations for improvement of legal aid provision
Article 8 of the Asylum Procedures Directive 2013 should be amended to make it explicitly obligatory for all Member States to provide such adequate legal information and assistance to asylum seekers as is really necessary to empower them to represent themselves fairly.
Use written statements before interviews— it’s so much fairer and more efficient, the only real reason not to do it is because it makes it harder to get rid of people who are really eligible, and we should not be aiming for that.
Whether your priority is promoting fairness for asylum seekers or maximising efficiency (minimising costs) for the receiving society, the current asylum procedures system is irrational and performing poorly.
The only way the design of the current asylum procedures system in practice makes any sense rationally is if its unfairness and inefficiency is deliberate and designed to be a part of Europe’s overall punitive deterrence regime.
Treating people decently, providing enough detailed information on the procedures, but also on the criteria and how to substantiate credibly, so to empower people to represent themselves fairly, listening to people fully and fairly promptly after arrival, and making genuinely individual, objective and impartial decisions the first time, not only begrudgingly and belatedly on appeal, would also be more efficient and less expensive per person received.
There are many other problems with the current Family Reunification legal framework in practice which I cannot go into here. To be honest I don’t know in as much depth and detail about Family Reunification practice as I do about the other topics here. I’ve helped with some cases to the extent of working out what supporting evidence documents applicants should try to get ready, but not seen a whole case through directly.
So I will just comment on one problem, not actually directly part of the Family Reunification law, but the consequences of misapplication of statuses on access to rights to family unity.
Because the Dublin Regulations are currently up for renewal, there is much legal debate and policy analysis around what they might do next. Almost certainly they will make the legal framework more draconian and deterrent, because that is the direction of the whole of EU asylum law and policy lately.
Dishonest misapplication of different asylum statuses
Granting Subsidiary Protection only to people who clearly have Refugee Status according to international law already as a means to postpone their access to family reunification rights in order to manage immigration arrivals rate, is dishonest and should be publicly unacceptable.
Persons with refugee status enjoy a privileged position compared to other foreign nationals in terms of family reunification, since they do not necessarily have to cover the cost of living for themselves and their families and they do not have to prove that they possess sufficient living space. In order to claim this privilege, refugees have to notify the authorities within 3 months after the refugee status has become incontestable (final) that they wish to be reunited with a close family member.
Criteria and conditions
Persons with refugee status enjoy a privileged position compared to other foreign nationals in terms of family…
“in the first months of 2016, the BAMF granted subsidiary protection instead of refugee protection in a record number of cases. This policy change affected Syrian nationals in particular, but also asylum seekers from Iraq or Eritrea: For instance, 95.8% of Syrians had been granted refugee status in 2015, this rate dropped to 56.4% in 2016. Conversely, the rate of Syrians being granted subsidiary protection rose from 0.1% in 2015 to 41.2% in 2016. The policy change at the BAMF coincided with a legislative change in March 2016, according to which family reunification was suspended for beneficiaries of subsidiary protection until March 2018 (see section on Family Reunification). Tens of thousands of beneficiaries of subsidiary protection appealed against the authorities’ decisions in order to gain refugee status (“upgrade-appeals”), with a success rate of more than 75% in 2016.”
Differential treatment of specific nationalities in the procedure
Between 2012 and 2016 the applications of asylum seekers from certain countries were prioritised, either on the grounds…
The change from 0.1% Subsidiary Protection decisions for Syrians applying for asylum in Germany in 2015 to 41.2% in 2016 clearly is not even plausibly compatible with “individual objective and impartial assessments” (Art.10(3) APD2013r), nor with Art 41(2a) Charter of Fundamental Rights in the EU.
Subsidiary Protection instead of Full Refugee Status Complicates Family Reunification | Legal…
The legal requirements of the Second Asylum Seekers Package came into force in Germany on 17 March 2016. This…
There are two kinds of misapplication of Subsidiary Protection status to people who should be recognised as having Refugee Status:
Blatant, dishonest misapplication of the wrong legal status in order to prevent someone applying for family reunification with close relatives they mentioned are in severe danger, as, for example, a friend from Damascus now in the Netherlands who was tortured for 98 days in several of Assad’s 17 torture centres, worse than Sadnaya — the famous one, which he says is ‘like a hotel’ compared to some of the less famous torture centres in Syria, whose girlfriend and best friend were killed under torture in jail with him, because they were all suspected of political opposition because they were academics or intellectuals. It could hardly be more obvious that his case fits Refugee Status, but he was only given Subsidiary Protection. As a result, his mother and father still in one of the besieged districts of Damascus are still there, he’s still applying for an exceptional discretionary family reunification residence permit for them, but meanwhile his dad’s skin cancer caused by exposure to a sulphur mustard gas attack by the regime in E Damascus suburbs in late 2015 is still getting worse and spreading, to the point he can’t sleep because of the pain and he’s bleeding out of his ears. He is not at all the only one — immediately I can remember two other cases personally.
Secondly, a kind of misapplication of the different asylum legal statuses which could possibly or in some cases be due to genuine confusion or ignorance: When large groups of people or all the people in an area are targeted for political reasons, as in Syria, even tho it is a large number of people it is still targeted for reasons of persecution, not indiscriminate or targeted for other reasons, so Refugee Status applies not just Subsidiary Protection. Targeting people for reasons of persecution does not become ‘indiscriminate’ just because it is widespread or systematic.
Aachen court of appeal (English translation, and link to original article at the top there) has clarified and confirmed recently that fear of persecution for refusal of military service for conscientious and objective reasons is grounds for Refugee Status not just Subsidiary Protection, and that widespread political persecution does not ipso facto become ‘indiscriminate’ and therefore only grounds for Subsidiary Protection.
This is a frequent pattern, far too frequent to be explainable as just chance mistakes.
The impact is: families whose close relatives in fact have Refugee Status according to international law but national authorities have only granted them Subsidiary Protection are stuck in e.g. Syria exposed to indiscriminate bombardment while their relatives, usually their husbands and fathers, are in Germany unable to do anything but listen to their frantic terrified voice recording messages with the sound of bombings in the background. Some Syrian men have even taken the illegal smuggling routes back home again, putting themselves in extreme danger, because they couldn’t stand being separated, constantly aware their families are in danger but unable to do anything. Is this the kind of society we want to be and to become, if we continue imposing this kind of severity of injustice on traumatised people to keep them separated from their families even after they’ve got asylum here?
And because people are often not informed of their right to appeal against a Subsidiary Protection decision when they are probably eligible for Refugee Status and there is a short deadline to appeal that decision, they are effectively obstructed from enjoying their right to family unity.
Inadequate Interview Questioning and Practically No Appeals Now
“EASO’s conduct of interviews amounts to maladministration in violation of the right to a fair hearing guaranteed under Art 41(2a) CFR. […] EASO’s conduct of interviews systematically disregards their own guidelines and does not amount to an individual examination of applications for international protection. Given that an inadmissibility decision provides the legal ground for returning an applicant to Turkey, the denial of a fair hearing risks breaching the non-refoulement principle.”
Greek Hotspots - ECCHR - EUROPEAN CENTER FOR CONSTITUTIONAL AND HUMAN RIGHTS (en)
The Ombudsman is an independent institution tasked with holding the EU administration to account for failures to…
How credibility assessment is supposed to work in EU asylum law is that the applicant and the interviewer have a shared duty to substantiate the claims.
The interviewer also has a duty to inform the applicant how to substantiate their claim. I think that is a part of the procedure, so even given the minimalistic definition of the State’s obligation to provide legal information to asylum seekers in current APD2013r and L4375, still, failing to provide that information how to substantiate amounts to failing to provide “information on the procedures”.
Couple that failure to provide information on how to credibly substantiate with the failure to interview adequately in depth and really individually, objectively and impartially, and the ECCHR’s conclusion that it amounts to denial of a fair hearing and maladministration is clearly justified.
Appeals Success Rate Between Old and New Appeals Committees has Dropped 97%
And that cannot possibly be “individual objective and impartial decisions”. (Article 10(3) Asylum Procedures Directive 2013 (recast).
AIDA 2016 Update: Greece
The updated country report on Greece provides a thorough analysis of the transformation of the Greek asylum system in…
From 13% > 0.4% appeals success rate between the old and the new appeals committees cannot possibly be because the populations of appellants have changed that much objectively.
Degrading Reception Conditions, Delayed Asylum Procedures and Coerced ‘Voluntary’ Returns
Returns and repatriation have to be carried out under the terms of the Returns Directive 2008, particularly relevant here is Article 5:
1. Non-refoulement, best interests of the child, family life and
state of health
2. When implementing this Directive, Member States shall take
due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.
Critically, for an assisted return or repatriation to be truly voluntary, the person has to be fairly informed about what the options ahead of them really mean long-term, not coerced to leave by being subjected to inhumane or degrading conditions or arbitrary detention, and not in an abnormal state of mental health such as PTSD, clinical depression or anxiety disorder.
Report: a best practice model for NGO delivery of assisted voluntary return - Refugee Action
From April 2011 to November 2015, Refugee Action's Choices service delivered the UK's assisted voluntary return (AVR…
The reception conditions in Greece are not just degrading and deindividuating due to lack of resources or incompetence, but effectively to coerce people into ‘voluntarily’ refouling themselves by making them desperate and depressed.
For example, one family I know where the mum and dad were clinically depressed, had been hospitalised because the mum repeatedly attempted suicide, were speedily given ‘voluntary’ repatriation by IOM to Afghanistan, and have since faced death threats from the Taliban again. That was, I think, a clear violation of Article 5(c) of the Returns Directive.
Degrading and Deindividuating Reception Conditions
The Refugee Archipelago: The Inside Story of What Went Wrong in Greece
Refugees Deeply investigates failures in the most expensive humanitarian response in history, which played out during…
Greece: Between Deterrence and Integration
Seven years of economic depression have not been kind to the city blocks around 17 Halkokondyli St., the office of the…
Asylum procedures are supposed to be given fairly and efficiently, and being reasonably efficient and timely is part of fairness. Because of the “emergency situation” and “extraordinary measures,” the EC and Greek government have assumed to be exempted from all the statutory maximum time periods within which certain stages of the asylum procedures should be applied by law.
Penalising asylum seekers for unauthorised entry
refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of article 1, enter or
are present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary and such restrictions
shall only be applied until their status in the country is regularized or they
obtain admission into another country. The Contracting States shall allow
such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Having been there for months, I cannot believe that the extreme slowness of the asylum procedures for people on the islands since 19 March 2016 is really just due to lack of resources or the numbers of people — it is a deliberate part of the punitive deterrence and non-entrée regime and intended to coerce people to ‘voluntarily’ refoule themselves.
Punishing asylum seekers for being asylum seekers or for crossing borders without authorisation or even using false papers, is illegal under Article 31 of the Geneva Convention. People’s needs for protection from persecution and serious harm definitely morally outweigh breaking administrative procedures in order to reach a place of safety. To prioritise administrative procedural law over protecting human beings from severe harm is morally obscene.
As several refugee friends noticed independently: Europeans keep our stray dogs in more humane conditions than we do for refugee humans.
When I actually showed Article 31 on non-penalisation of applicants for international protection for unauthorised entry or stay to a group of refugees on hunger strike in Souda camp on Chios in June 2016, they first laughed and then were silent for a while and then clearly and reasonably angry — ‘What is all this if it is not punishment?!’
Ethical reflections on where we’ve come to and where we’re going
‘Sovereignty’ and ‘Democracy’
Government policies follow public opinion and majority will. Some will immediately say “that’s democracy,” but actually no — unconstrained majoritarianism is not constitutional democracy, but ‘ochlocracy’ or tyranny of the majority.
Constitutional democracy has legitimate constraints on how far State actions will follow popular opinion and majority will; namely two:
- Denial of objective reality in principle, just following individual subjective sentiments as evoked by exploitative and disinformation campaigns, is not a kind of public opinion worthy of according absolute sovereignty to.
- Human rights precede the legitimacy of the majoritarian compromise. Democracy is procedural; majority will does not constitute an absolute authority, and specifically the majority will cannot legitimately authorise violations of minorities or non-citizens’ human rights.
If an element of liberal elitism is practically necessary to safeguard empirical objectivity and protection of minorities and non-citizens’ human rights, then so be it; as long as the degree of elitism is necessary and proportionate,
I am wholeheartedly for that compromise to participatory democracy.
Foundational philosophy of Human Rights
The difference in implicit attitude or moral philosophical basis between the humanist universalist ethos underlying European human rights laws of the 1950s-60s compared with now is that then they understood that human rights are human rights, equal and inalienable, not granted by State authority and not merely conventional citizens’ privileges plus discretionary grants to non-citizens.
Consumerism tends to lead to a reductive and impoverished idea of what it means to be a human being, and a result, voting rights are taken to be privileges rather than responsibilities, and treating non-citizens as non-humans becomes perceived as morally acceptable.
Ethics and morality are two different things. Ethics describes and analyses our responsibilities as human beings which are real and inescapable as long as we are human beings. Morality is the culturally transmitted operating system of social norms of the society we live in. Morals can be wrong.
Framing evokes moral values and constructs authority
The contingent nature of State authority
The State has no moral authority to create or to destroy human rights. Concepts of citizenship, nationality, borders and territories, can be legitimately used as to implement human rights in practice, as means not ends, but they cannot validly be used to negate human rights for anyone.
Human rights exist naturally as social obligations related to inherent human dignity and our social nature; preceding the State’s contingent legitimacy, which is derived from human rights, not the other way around.
States have proximate responsibility to respond to human rights in practice, because they represent us collectively, but that responsibility ultimately is personal to each one of us, as an inescapable characteristic of being human.
The belief in inherent human dignity was more easily explained and culturally transmitted in the 50s-60s when traditional Jewish and Christian symbolic language was still perceived as more normal. Inherent human dignity can also be explained and justified in entirely naturalistic terms, as Levinas did, but it is a much more complicated and less efficient way of communicating.
The Preface to the ECHR is clear and upfront about its moral realism:
The Governments signatory hereto, being members of the Council
Considering the Universal Declaration of Human Rights
proclaimed by the General Assembly of the United Nations on
10th December 1948;
Considering that this Declaration aims at securing the universal
and effective recognition and observance of the Rights therein
Considering that the aim of the Council of Europe is the achievement
of greater unity between its members and that one of the methods
by which that aim is to be pursued is the maintenance and further
realisation of Human Rights and Fundamental Freedoms;
Reaffirming their profound belief in those fundamental freedoms
which are the foundation of justice and peace in the world and
are best maintained on the one hand by an effective political
democracy and on the other by a common understanding and
observance of the Human Rights upon which they depend;
Being resolved, as the governments of European countries
which are like-minded and have a common heritage of political
traditions, ideals, freedom and the rule of law, to take the first
steps for the collective enforcement of certain of the rights stated
in the Universal Declaration,
Have agreed as follows:
Then follows the particular human rights codified. The particular positive formulation of rights is culturally relative and historically contingent, but the nature of human rights as human rights is universal; the right to be recognised as a person intrinsically having rights in social relations is inalienable, even by the person themselves.
The text was co-authored by David Maxwell-Fyfe, a British judge and former Nuremberg Trials judge, and by Jacques Maritain, a French Catholic humanist philosopher. The Preface I would guess was most likely drafted by Maritain, because it clearly and simply shows a Thomist attitude to the right relationships between ethics and law, and between society and State.
Human rights are recognised and declared, not granted by State authority and are not merely social conventions.
‘Democracy’ in this passage is procedural, and tied to 2a common understanding and observance of Human Rights”.
I think human rights advocacy organisations have to some extent failed to communicate the foundational philosophy of human rights enough to establish and safeguard that “profound belief” and “common understanding” which the post-war generation felt about the constitutional and human rights laws that they made. It does not have to be in complicated philosophical terms, although without the use of ritual and myth to culturally transmit morals we are constrained to long prosaic explanations.
We have a major fight on our hands. Refugees are being used as pawns in Europe’s internal political conflict over its moral and legal operating system, which matters because it distributes and redistributes authority and power.
Each person’s case matters and each legal issue has to be fought on the factual and legal details, and that is not just a means but also communicates and embodies the objectivity and respect for personhood which is a foundation of our ethos, but we also must not lose sight of the big picture.
Politicians should be demanded to state clearly where they want and aim for, not just allowed to make sympathetic vague statements with no practical definite commitments. If politicians are for drowning people to use the display of their suffering as a deterrent to others, demand that they should say so clearly. If they think human sacrifice is better than for the nation to perish, as Caiaphas argued before the Sanhedrin, let them say so clearly.
The Eudaimonistic principle as a tool for understanding political motives and actions
The Eudaimonistic principle is not just normative but also a very practical analytical guide to human motivations: When people are acting evilly, what is the relative or partial good that they perceive and are aiming for?
The European Commission’s typical euphemistic politely coded language which actually means killing innocent people should be clarified in terms of what they are actually aiming for. Analysing it eudaemonistically also suspends blame long enough to judge whether the aim is actually that good.
Potential consequences of continuing the way we’re going
The EU’s non-entrée regime and externalisation of border controls to transit countries and even source countries of refugees has already drowned at least 46,000 people since 2000 in the Mediterranean. If you we could count the people who have died due to lack of access to healthcare, or degrading and unhealthy conditions in refugee camps, or due to health problems related to the extreme chronic stress of being a forcibly displaced person now, the death toll as a result of non-entrée policies enacted by other States but under EU Member States’ effective authority and control in other territories would probably be over a hundred thousand by now.
If the Assad regime as the front for Russian and Iranian occupation of Syria continues its systematic policy of part exterminating and then forcibly expelling the remainder of civilian and armed opposition first into opposition territory in N Syria and then escalating the extermination bombardment of N Syria but with nowhere left to even be forcibly evacuated to, then we will be faced with 4–5 million people being either exterminated or expelled to no-one knows where they can even be expelled to anymore.
There is no sign of the regime voluntarily stopping their counter-revolutionary and genocidal war on Syrians, nor of any limits such as a No Fly Zone being imposed. The UN is completely dysfunctional — it cannot fulfil its most basic function of preventing or stopping mass crimes against humanity or genocide from continuing for over 6 years now.
There are 4–5 million people in Syria already affected by being forced to remain in a place of persecution and risk of serious harm (contra to Resolution (67) 14 of the Council of Europe 1967, para. 2), which is proximally due to Turkey’s 8ft high concrete border wall to stop refugees from entering Turkey so that they cannot transit towards the EU, patrolled by guards who shoot to kill, which is half completed now, but ultimately due to the EU’s incentives and explicit instructions in the EU-Turkey Statement to stop Syrians from leaving and force them to remain in Syria “by any means necessary”, as European Council President Donald Tusk repeated.
The final death toll due to the EU’s non-entrée regime against asylum seekers combined with the international community’s unwillingness to enforce the Responsibility to Protect in Syria and Yemen, may reach millions of people within the decade. When will “never again” ever actually be applied?!
And what does ‘life’ even mean to a human being who is allowed only to barely physically live but without any realistic prospect for hope? This is what the EU’s policies of confining millions of refugees to camps indefinitely in order to stop them coming to Europe in order to protect their own arses from the far right populist movement really means.
‘Liberal’ bourgeois consumerist morals and their predisposition to collaborating with fascist opportunists
EU ‘liberal’ politicians rushed to compromise with the neofascists in 2015–16, because they saw them as a threat, so I propose that those of us who really believe in the EU’s founding values and principles of humanist universalism should make ourselves a greater threat to ‘liberal’, i.e. bourgeois, political parties and governments than even the neofascists have been so far.
“Le bourgeois n’est pas celui qui s’habille bien, qui vit aisément et qui est de famille bourgeoise, c’est-à-dire qui n’appartient ni à l’aristocratie, ni non plus à la paysannerie. Le bourgeois au sens idéologique du terme, tel qu’il est défini, compris et expliqué par Marx Alain et Mounier, c’est celui qui fait des réserves, un égocentrique, un suffisant, un indifférent. Et celui-là a la magistrale caractéristique de se tenir à l’écart de la vie et de l’action publiques, pour consacrer son temps a quelques occupations mesquines, et réduire ses activités quotidiennes et ses soucis quotidiens à valoriser ce qu’il a de plus superficiel, à renforcer son prestige, à éblouir le monde qui l’entoure, à satisfaire ses ambitions et garantir son bien-être.”
“ the bourgeois is not the one who dresses well, who lives easily and who is bourgeois by family, that is to say one who belongs neither to the aristocracy nor to the peasantry. The ideological bourgeois, in the sense of the word, as it is defined, understood and explained by Marx Alain and Emmanuel Mounier, is the one who made reservations [on their ethical responsibilities as persons], self-centered, smug, and indifferent. And this one has the masterly characteristic of standing on the sidelines of the life and action of the public, to spend his time he has some petty occupations, to reduce his daily activities and his everyday worries to value just what he has superficially, to strengthen his prestige, to dazzle the world around him, to satisfy his ambitions and ensure his own well-being.”
Edouard Saab, 1953
As Pope Francis said in an interview in July 2016, about the callous indifference of ideological bourgeois or consumerist morals:
“Today there is a need for a revolution of tenderness in this world that suffers from “cardiosclerosis”.
QUESTION — Cardio…?
POPE — Cardiosclerosis.”
Between such ‘liberals’ and the neofascists, we have to find the way to return to the radical middle ground on which the European project was founded, grounded in the wisdom reborn out of the apocalyptic cruelty and massive suffering of the two ‘industrialised’ wars in western Europe, or else we will have to repeat that experience in the flesh in order to re-realise what we are throwing away without understanding its value now.
Clarifying the choice ahead
Systematic human rights violations always have long-term consequences (the paradigmatic example being the Armenian genocide which, due to impunity and denial, became the Nazis’ model for the Holocaust), especially when they’re normalised and even more so when they’re denied. The influences and precedents set by how outrageously unjustly the EU has treated refugees especially in the last few years will continue probably for longer than my lifetime, even if we were to turn around and begin to make amends right now, but the signs are all towards EU policies still getting worse and even more anti-human.
I think we should seriously consider at what point we will decide that our natural rights to resist and rebel against tyranny and severe injustice outweigh the public benefits of contingently alienating the right to legitimate use of defensive force to the State. It is only when politicians see an organised political movement that seriously willing to take them on by all means necessary that they will really reconsider their position and not just make pacifying meaningless sounds like lullabying babies to sleep again.
If at least 46,000 white Europeans had drowned as a result of government policies since 2000, do you think the European public would tolerate it? How many white Europeans would have to die before governments faced overwhelming public pressure to change policies: 2–3, 20, maybe 200?
The November 2015 Paris attacks killed 130 French citizens, and France declared a State of Emergency that suspended many civil rights and changed many policies and budgets. Hundreds of non-citizens but still humans die of drowning or hypothermia in the Mediterranean on an almost weekly basis because no legal and safe routes to seek asylum, except for a nominal and merely token number of people, are allowed by EU governments. When will there be a recognised EU State of Emergency for them?
You are free and responsible to make your own personal moral decision about what to do about this, but consider that there are now thousands of volunteers who befriended refugees over the last few years who share the experience of moral alienation from the conventional ‘mainstream’ European society now. A burning sense of injustice and moral alienation cannot be suppressed even if we wanted to, so we should reflect and then plan how to direct that fire of righteous anger wisely and well.