From Poland to El Paso: the State of Migrant and Refugee Rights at EU and US borders
By: Liz Kunesh, Emilie Duclosson, and Nora Heine
In recent years, immigration has been at the forefront of political debate in the United States and the European Union. So far, the European Union has not been able to find a common solution to the challenge that immigration presents. In the United States the topic was certainly very relevant during the 2016 Presidential Election and continues to be a polarizing issue to this day. In this blog, we examine two current situations from both borders in more detail. We examine the situation at the Polish border in Europe and the state of deportation procedures and detention centers in the US. We start with a brief overview of refugee and asylum procedures and the definitions of key terms. According to the United Nations, “Refugees are persons who are outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection” (UN). Furthermore a migrant is defined by the United Nations Migration Agency “as any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence […]” (UN).The number of refugees that the United States accepts each year is determined by the President and the United States Congress. The number for the year 2021 was set by the Trump administration at 15,000 and later increased by the Biden administration to 62,500. The U.S. Refugee Admissions Program is accessible through three different categories. The admissions process takes between 12 and 24 months on average (American Immigration Council).
Immigration into the United States is possible through the principle of family-based immigration, through the granting of a temporary or permanent Visa based on employment, or through the Diversity Visa Program. The number of people who can get a permanent Visa is limited to 140,000 each year (American Immigration Council). The right to seek asylum in the EU is guaranteed in Article 18 in the EU Charter of Fundamental Rights. Furthermore Article 19 of the Charter contains the non-refoulement principle. According to this principle, it is prohibited to send an individual back to a country where she/he is at risk of being prosecuted, tortured or being treated degradingly or inhumanly (FRA). Practices such as pushbacks are prohibited as well. Pushbacks are defined as measures that force asylum seekers and migrants back into the country from which they crossed the border without an assessment of their individual case and where they do not have access to procedures of asylum and international protection (European Parliament).
In order to look more in detail at the human situations at the border, we focused our work first on the current situation at the Belarusian and Polish border. For the past few weeks, the EU has faced a new immigration crisis with thousands of migrants at the Polish border wanting to get into the EU (New York Times). This situation is hardly an accident.
Belarus has loosened visa rules and increased the number of flights to Minsk by using state-owned airline companies (The Guardian). The Polish Foreign Minister said that the migrants are allegedly forced to pay bribes on their way to the border, their documents are taken away, and they are sometimes forced to illegally cross the border into EU countries (VOA). The Belarusian forces help them find the direction of the border and give them fence-cutters.
Migrants are now trapped by the Belarusian border guards who do not allow them to go back to Minsk but push them against the Polish border, and the Polish border guards who do not let them in. Thousands of people are thus stranded or hiding along the border in freezing conditions, not wanted by the European Union countries or by the country that lured them there in the first place. In September, the International Organization for Migration said four migrants died near the border between Poland and Belarus. At least two of them appear to have died of hypothermia. Moreover, according to Amnesty International, these refugees don’t have access to shelter, medicine, clean water and food.
The situation at the border lacks transparency, since Poland has declared a state of emergency forbidding journalists and members from NGOs to access the border area (Reuters).
It is important to note that Poland passed an amendment in October that allows border patrols to refuse asylum to people that entered the country illegally (Euractiv). Under this law, an already filed application for asylum does not need to be examined and it is legal to push migrants back to Belarus. This does not apply when a migrant comes directly from a country where his/her life is in danger. This amendment goes against the Refugee Convention from 1951, according to which refugees cannot be punished even if they cross the border illegally and have the right to seek asylum. The law was approved after the Constitutional Court in Poland ruled that some articles in the EU treaties are not compatible with Poland’s constitution. Lawmakers also approved 353 million euro to build fences around the border.
The European Union denounced the policy of Belarus as “weaponizing” of migrants, in the sense that Loukachenko is allegedly using these people to put pressure on the EU. As stated by Piotr Buras, from the European Council on Foreign Relations, “Belarus is forcing Europe into a moral crisis” (VOA). These actions coming from Loukachenko are understood as a response to the European sanctions that appeared after the controversial reelection of the president in 2020.
Our second case study focuses on the state of migration in the U.S. Under domestic and international law, immigrants in the United States have a wide net of protections to ensure that their human rights are respected. The Supreme Court has affirmed in numerous rulings that the provisions of the United States Constitution apply to immigrants living in America. According to the U.S. Constitution, immigrants, both documented and undocumented, have the right to due process, legal counsel, freedom from unreasonable search and seizure, and freedom from cruel and unusual punishment. Under UN law, migrants have the right to life, the right to equality and non-discrimination, the right to protection against arbitrary arrest and detention, and the right to protection from torture and inhuman treatment. According to the 1951 Refugee Convention, refugees have the right not to be returned to a domestic situation “where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.”
Again and again, the United States has failed to protect the rights of these migrants, as defined by domestic and international law. Some of the most visible areas where the US has failed to safeguard the rights of migrants are the lack of due process during expedited removal procedures and abuses of migrant children.
Recently, a major blow has been dealt to migrant rights by a procedure known as “expedited removal” (Politico). Through this process, authorities are allowed to deport individuals from the United States without a hearing before an immigration judge. In the past decade, the United States has seen a 1,883% increase in asylum seekers who argue that they have the right to remain in the United States due to the credible fear of persecution in their home country. According to the Supreme Court, which upheld the constitutionality of expedited removals in 2020, expedited removal reduces the caseload burden of immigration judges by fast-tracking the removal of individuals whose asylum claims are unlikely to succeed. Through this procedure, immigration authorities are given the power to quickly deport individuals who are undocumented, who have committed fraud or misrepresentation, or who have not been physically present in the U.S for two years prior to being apprehended (American Immigration Council). This process denies migrants their day in court and rests their fate completely in the hands of immigration authorities.
At the border, children are especially vulnerable to human rights abuses. In June of this year, the BBC reported on conditions in a U.S. detention center in the Fort Bliss military base in El Paso, Texas. In this camp, teenagers who crossed the U.S.- Mexico border alone wait to be reunited with family in the U.S. The children here live in deplorable conditions. They are housed in 12 tents, where hundreds of children are kept at one time. These children spend most of their time in the tents and only get an hour or two for recreation each day. The camp has experienced outbreaks of disease, including the flu, strep throat, and COVID. Reports of sexual abuse have also exposed the mistreatment of minors by staff at the Fort Bliss camp. Mental health is also an area of concern, with many children experiencing severe depression. The failure of the United States government to adequately provide for these children places a stain on its human rights record.
Looking to the future of migration and migration policy, we propose that the EU needs to develop more effective instruments to hold its member states accountable and to ensure that they act according to international law and European law. The situation of migrants on the Polish border and on other European borders is devastating and intolerable for a union of nations that claims to be guided by humanity, democracy, and the rule of law. It is furthermore essential that the United States ensures that the rights of immigrants are upheld and protected. Everyone has the right to a fair trial and equality under the law. The situation at the border needs to be improved as fast as possible, especially the medical conditions to prevent an uncontrollable spread of Covid-19. International and domestic laws are not suggestions. They are binding standards that both the European Union and the United States must abide by.
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