Lecture 10 Discussion
HOW EFFECTIVE ARE NATIONAL AND EU POLICIES IN THE AREA OF FORCED MIGRATION?
Eiko R. Thielemann*
Large numbers of displaced persons and their highly unequal distribution constitute a significant challenge for policy-makers. Questions about the determinants of such flows and how governments can manage them have been a long-standing concern of the academic literature. It has sometimes been argued that if a State’s reception burden is large, then that country’s policies are overly generous relative to other destination countries. However, this article shows that this argument risks overesti- mating the link between the policies of destination countries and the direction and size of migration flows. It argues that the effectiveness of both unilateral and multi- lateral policies to regulate forced migration flows is limited. To support this argument, the article reviews the literature on the role of push–pull factors of international migration and provides both qualitative and quantitative empirical data to analyse the impact and effectiveness of national and international regulatory initiatives in this field. Particular attention will be placed on the role of regional cooperation in the context of the highly institutionalized asylum and refugee policy framework of the European Union.
Keywords: policy effectiveness, push–pull factors, European Union, burden-sharing
1. Introduction
In an increasingly globalized world, large numbers of displaced persons and their highly unequal distribution constitute a key challenge for public policy-makers.1
This challenge is compounded by the fact that one State’s policies, aimed at regulating migration, will often create negative externalities for other States.
* Eiko Thielemann is a Senior Lecturer in European Politics and Director of the Migration Studies Unit at the London School of Economics and Political Science.
1 The terms “displaced person”, “forced migrant”, and “protection seeker” are used interchangeably in this article. They refer to individuals who have left their country of origin involuntarily in the belief that they cannot or should not return to it in the near future. In this usage, the terms refer to asylum-seekers and refugees under the Geneva Convention but also those who have been forced to leave their home country for environmental or other reasons. It should be recognized that the dividing line between categories of “forced” and “voluntary” migration is not always clear-cut. It might be more appropriate to conceptualize the idea of a continuum with clear cases of involuntary migration on the one side, clear cases of voluntary migration on the other and a large ‘grey zone’ in between (International Organization for Migration (IOM), Migration, Climate Change and the Environment: Assessing the Evidence, IOM Policy Brief, Geneva, IOM, 2009, 5, available at: http://publications.iom.int/bookstore/free/migration_and_environment.pdf (last visited 14 Sep. 2012)).
Refugee Survey Quarterly, Vol. 31, No. 4, pp. 21–37 � Author(s) [2012]. All rights reserved. For Permissions, please email: journals.permissions@oup.com DOI:10.1093/rsq/hds017
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Policy-makers trying to find effective responses to the actual or potential dis- placement of persons have been faced with the following questions: what ex- plains the variation in the numbers of forced migrants that States receive? What role can we expect public policy measures to play in influencing such flows? And how effective have such policies been in practice? From a national perspective, it has sometimes been argued that if a State’s asylum reception responsibilities are high, then that country’s policies are probably too lenient and its welfare pro- visions for migrants too generous relative to other destination countries. By increasing the restrictiveness of its policy, the argument goes, a State will be able to reduce inflows and redress the inequitable distribution of refugee respon- sibilities. However, this argument risks overestimating the link between the policies of destination countries and the direction and size of migration flows. This article argues that the effectiveness of migration and non-migration policies in regulating migration flows is limited.2 To support this argument, the article analyses the role of push and pull factors of migration, the impact of different types of national policies and the effects of international cooperation on forced migration, focusing on the highly developed institutions of regional cooperation in the European Union (EU) context.
2. The determinants of migration flows: push and pull factors
Underlying some of the most prominent theories and models of international migration3 is the so-called push–pull model. It is a conceptual framework that suggests that there are push factors in countries of origin that cause people to leave their country,4 and pull factors that attract migrants to certain receiving countries. Although this model was developed with economic migration in mind and has its limitations,5 it does offer important insights for research on forced migration too. An analysis of the most established data available in the wider field of forced migration, the annual statistical reports of the United Nations
2 States can, of course, pursue several objectives in this field. While the humanitarian aim of protecting displaced persons is clearly one of them, arguably the principal objective for any sovereign State is likely to be the control of migration inflows as any unregulated influx of migrants is likely to be viewed as a threat to other state objectives. Some have even portrayed the relationship between these two objectives in terms of a trade-off: a policy choice between large numbers of migrants with relatively few rights or smaller number of migrants that are granted more rights (M. Ruhs & P. Martin, “Numbers vs. Rights: Trade-Offs and Guest Worker Programs”, International Migration Review, 42(1), 2008, 249–265).
3 D.S. Massey et al., “Theories of International Migration: Review and Appraisal”, Population and Development Review, 19(3), 1993, 431–466.
4 For a useful overview, see United Nations Development Programme (UNDP), Human Development Report – Overcoming Barriers: Human Mobility and Development, New York, UNDP, 2009, available at: http://hdr .undp.org/en/reports/global/hdr2009/ (last visited 14 Sep. 2012).
5 For example, the model tends to underestimate factors that can facilitate migration, such as migration networks or the people smuggling industry. For a critical review, see H. de Haas, Migration Transitions: a Theoretical and Empirical Inquiry into the Developmental Drivers of International Migration, International Migration Institute (IMI), Working Paper No. 24, Oxford University, 2010, available at: http://www.imi .ox.ac.uk/pdfs/imi-working-papers/wp24-migration-transitions-1 (last visited 14 Sep. 2012).
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High Commissioner for Refugees (UNHCR), shows the highly unequal distri- bution of responsibilities for forced migrants (Figure 1).
In particular, it reminds us that the world’s most developed countries host less than 20 per cent of the world’s forced migrants and refugees. A more detailed scrutiny of asylum trends in industrialized countries over the past two decades (Figure 2) highlights the importance of push factors in the evolution of forced migration flows. It shows that asylum applications peaked during the Bosnian war in the early 1990s and that numbers were also very high during the major refugee-producing conflicts in Kosovo, Afghanistan, and Iraq in the late 1990s and in early 2000. The broad fluctuations in asylum flows, hence, are at least in part driven by violent conflicts, which constitute one of the principal push factors for forced migration.
The results of this kind of broader quantitative analysis have been supported by several case studies. For example, an influential study on Switzerland con- cluded that governments’ policy efforts to regulate migration flows can be expected to be ineffective “if the push factors in a region nearby to the receiving states reach a critical level”.6 Even in the case of the often quoted 71 per cent drop in asylum applications in Germany from 1992 to 1994 (see Table 1), which has widely been attributed to the introduction of new restrictive policies that came into effect with the changes to the German Basic Law in 1993, many
Figure 1. Population of concern to UNHCR in 2007
2.5
5.1
1.6
0.0
0.5
9.7
10.7
13.7
3.0
3.6
0.6
31.7
- 5.0 10.0 15.0 20.0 25.0 30.0 35.0
Africa
Asia
Europe
Latin America and the Caribbean
Northern America
Total
Total population of concern (millions)
Refugees (millions)
Source: UNHCR, Statistical Yearbook: Trends in Displacement, Protection and Solutions, Geneva, UNHCR, 2009.
6 T. Holzer, G. Schneider & T. Widmer. “The Impact of Legislative Deterrence Measures on the Number of Asylum Applications in Switzerland (1986�1995)”, International Migration Review, 34(4), 2000, 1182–1216.
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observers appear to have not sufficiently taken into account that this drop hap- pened against an overall drop of 70 per cent in the number of applicants from former Yugoslavia, for which Germany had been the preferred country of des- tination. Again, changes in push factors, i.e. the improvement in the security situation in Bosnia, were clearly more responsible for the drop in asylum appli- cations than any particular change in policy.7 In 1994, Germany, as the major recipient of forced migrants from former Yugoslavia, was the greatest beneficiary of then much smaller overall numbers of asylum-seekers leaving Bosnia in search of protection.
Figure 2. Total number of asylum applicants in OECD Countries, 1985–2007
0
100000
200000
300000
400000
500000
600000
700000
1 9 8 5
1 9 8 6
1 9 8 7
1 9 8 8
1 9 8 9
1 9 9 0
1 9 9 1
1 9 9 2
1 9 9 3
1 9 9 4
1 9 9 5
1 9 9 6
1 9 9 7
1 9 9 8
1 9 9 9
2 0 0 0
2 0 0 1
2 0 0 2
2 0 0 3
2 0 0 4
2 0 0 5
2 0 0 6
2 0 0 7
EU27
Non-EU (27)
Source: UNHCR, Statistical Yearbook: Trends in Displacement, Protection and Solutions, Geneva, UNHCR, multiple years [author’s own calculations].
Table 1. The role of push factors: forced migrants in Europe, 1992 and 1994
1992 1994 Drop (per cent)
Asylum applications in Germany 438,191 (62 per cent of total)
127,210 (38 per cent of total)
71
Asylum applications in Europe 708,984 335,811 53 Asylum applications from former
Yugoslavia in Europe 419,637 124,149 70
Asylum applications from former Yugoslavia in Germany
223,555 (52 per cent) 55,034 (43 per cent) 75
Source: UNHCR data from Thielemann, “The Effectiveness of Asylum Policy”, 467.
7 E.R. Thielemann, “The Effectiveness of Asylum Policy in Controlling Unwanted Migration”, in C. Parsons & T. Smeeding (eds.), Immigration and the Transformation of Europe, Cambridge, Cambridge University Press, 2006, 442–472.
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Although push factors are often responsible for migrants’ decisions to leave their home country, it is the variation in pull factors that is widely seen as determining the direction of migration flows, i.e. influencing a migrant’s choice of destin- ation country. A review of the theoretical literature on migration8 produces five principal categories of pull factors – economic, historic, political, geographic, and policy-related – which will be discussed further below.9
3. Which pull factors matter? The role of policy relative to structural determinants
There is an extensive general literature on States’ capacity to manage migration.10
A number of studies have focused on forced migration and have aimed to assess the relative impact of different pull factors, in particular, with regard to comparing the influence of policies relative to structural factors. Hatton11 argues that although the effect of policies is limited, it is still significant. Regarding the evolution of asylum flows since the early 1990s, he writes:
[T]he reason that the effects of policy on the proportion of applicants Fowing to different parts of the EU seem to have been small is that similar policy responses have occurred across the board. But in the absence of growing policy restrictiveness, the absolute number of applications to the EU would have ballooned by even more than it did.
This research is supported by Neumayer,12 who finds that restrictive asylum policies (in this study, countries with low recognition rates) are systematically associated with lower relative shares of asylum-seekers. However, as the use of recognition rates as a proxy for the relative restrictiveness or liberalness of States’ policies on forced migration has its limitations, other studies use a composite measure of policy to capture the variation in asylum policies among States.13
This study demonstrates that structural pull factors provide more powerful explanations of the relative distribution of asylum responsibilities than
8 In particular, see Massey et al., “Theories of International Migration”, 431–466. 9 For a more extensive summary of these different pull factors see Thielemann, “The Effectiveness of Asylum
Policy”, 451–455. 10 G.P. Freeman, “Can Liberal States Control Unwanted Migration?”, Annals of the American Academy of
Political and Social Science, 534, 1994, 17–30; C. Joppke, “Why Liberal States Accept Unwanted Immigration”, World Politics, 50(2), 1998, 266–293; S. Castles, “Why Migration Policies Fail”, Ethnic and Racial Studies, 27(2), 2004, 205–227; S. Castles, “The Factors that Make and Unmake Migration Policies”, International Migration Review, 38(3), 2006, 852–884; F. Düvell, Illegal Migration in Europe: Beyond Control?, London, Palgrave, 2005.
11 T.J. Hatton, “Seeking Asylum in Europe”, Economic Policy, 19(38), 2004, 51. 12 E. Neumayer, “Asylum Destination Choice: What Makes Some West European Countries More Attractive
Than Others”, European Union Politics, 5(2), 2004, 174. 13 E.R. Thielemann, “Why European Policy Harmonization Undermines Refugee Burden-Sharing”, European
Journal of Migration and Law, 6, 2004, 43–61.
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policy-related factors. Like similar studies,14 it finds that the most important factors explaining the direction of forced migration flows (i.e. the relative at- tractiveness of destination countries) relate to historical and network effects. Historical connections, colonial links, language ties, or cultural networks be- tween countries of origin and destination facilitate transport, trade, and com- munication links between countries. These links tend to promote movements of people from one country to the other.15 Political and geographic factors are also found to matter in an important way. A host State’s liberal reputation matters, particularly for humanitarian migrants, as does the geographic distance between countries of origin and destination countries. Using data for 20 Organization for Economic Co-operation and Development (OECD) countries over a 15-year period, Thielemann’s study finds that the impact of policies relative to other structural pull factors is more limited than has sometimes been assumed. Restrictiveness in national policies does not automatically go hand in hand with small inflows. On the contrary, the study shows that since the mid-1980s countries such as Germany, Switzerland, and Austria experienced the highest relative asylum inflows in Europe, despite being among the countries that had introduced the most restrictive policies in Europe. Powerful structural pull factors trumped the effects of restrictive policies.
4. The impact of different types of migration and non-migration policy measures
Even if policy-related pull factors have a smaller impact on migration flows than the key structural pull factors, it is still important to ask what types of policies are more likely to influence migration than others. National policy-making over the past 10–15 years in Europe has been characterized by the adoption of new, often restrictive, legislative, and administrative instruments aimed to better control migration. Policy-makers have introduced changes in three areas in particular. First, measures in the area of access control policy (i.e. to rules and procedures governing the admission of foreign nationals) have included the tightening of visa policies, regulations for carriers, safe third-country provisions, etc. Second, rules concerning access to residence (temporary or permanent) have also been made more restrictive. In the asylum context, restrictive measures in this dimen- sion have included changes to countries’ refugee determination systems (e.g. fast-track procedures), appeal rights and rules concerning subsidiary protection. Finally, integration policies have also been tightened in the process of toughening up countries’ policy regimes. This has meant that rules concerning the rights and benefits given to asylum-seekers inside a country of destination (e.g. work and housing conditions, rules on freedom of movement, welfare provisions,
14 T. Havinga & A. Böcker, “Country of Asylum by Choice or by Chance: Asylum-Seekers in Belgium, the Netherlands and the UK”, Journal of Ethnic and Migration Studies, 25(1), 1999, 43�61; Hatton, “Seeking Asylum in Europe”, 5�62; Neumayer, “Asylum Destination Choice”, 155�180.
15 Massey et al., “Theories of International Migration”, 445�447.
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educational opportunities, etc.) have seen new restrictions. In order to assess how countries’ policy regimes have evolved over time in terms of their relative re- strictiveness, some studies16 have created policy indices that seek to quantify cumulatively countries’ policies across different dimensions. Owing to limita- tions in the available comparative data,17 it is impossible to provide comprehen- sive accounts. By focusing on a selection of key measures that run across all three principal policy dimensions (access, determination, and integration), Thielemann’s research sought to arrive at a reasonable approximation of a broader composite policy index using measures that have been widely regarded by policy-makers as having the potential to significantly influence an asylum- seeker’s decision as to which country to apply to.18 Thielemann19 finds that the significance of his policy index is largely due to the effect of two sets of policy measures, which regulate access to residence and control access to the labour market. First, the likelihood of forced migrants receiving some kind of status that will allow them to remain in the host country legally clearly is of the utmost importance. We have known for some time that host countries interpret common legal obligations for displaced persons in very different ways20 and that host States’ status determination decisions vary greatly between countries, even for forced migrants from the same country of origin.21 Second, given the high significance of employment opportunities for migrants, it is not surprising that labour market restrictions can play an important role in decisions on choice of destination country for those migrants who are in a position to make a choice. This will be true not only for those applicants whose motives are primarily economic, but also for those forced migrants who have the choice between several safe host countries. Overall, this suggests that even though displaced persons will have only limited insights for decisions on where best to seek pro- tection, some relevant information on States’ policies clearly appears to be transmitted to potential migrants through community networks or agents.
16 Hatton, “Seeking Asylum in Europe”, 5–62; Thielemann, “Why European Policy Harmonization Undermines Refugee Burden-Sharing”, 43–61; Thielemann, “The Effectiveness of Asylum Policy”, 442–472.
17 The International Migration Policy and Law Analysis (IMPALA) database aims at closing these data gaps. IMPALA is a collaborative project of researchers from Harvard University, the University of Luxembourg, the University of Amsterdam, the London School of Economics, the University of Sydney and the Wissenschaftszentrum in Berlin. It is collecting comparable data on immigration law and policy in over 25 countries of immigration between 1960 and 2010. More information on IMPALA can be found at: www. impaladatabase.org. (last visited 14 Sep. 2012).
18 See e.g. UK Home Office, Reducing Asylum Applications, Internal working paper in preparation for the Ministerial meeting of 15 May 2002 [on file with the author].
19 Thielemann, “The Effectiveness of Asylum Policy”, 442–472. 20 European Council on Refugees and Exiles (ECRE), Non-State Agents of Persecution and the Inability of the
State to Protect: The German Interpretation, European Legal Network on Asylum (ELENA) Research Paper, London, ECRE, 2000, available at: http://www.ecre.org/research/nsagentsde.pdf (last visited 14 Sep. 2012).
21 T. Holzer & G. Schneider, Asylpolitik auf Abwegen: Nationalstaatliche und Europäische Reaktionen auf die Globalisierung der Flüchtlingsströme, Opladen, Leske and Budrich, 2002, 43; E. Neumayer, “Asylum Recognition Rates in Western Europe: Their Determinants, Variance and Lack of Convergence”, Journal of Conflict Resolution, 49(1), 2005, 43–66.
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However, the studies mentioned above found only a much weaker or no significant effect by policies in the integration dimension. For example, Thielemann’s study showed that measures that seek to limit a migrant’s freedom of movement within a host country (dispersal schemes) and measures that seek to curtail cash benefit payments to asylum-seekers (voucher schemes) have had no significant impact on the relative distribution of forced migrants among OECD countries.22 Neumayer corroborates this as he also finds no significant evidence for the impact of difference in welfare regimes on the distribution of forced migrants.23 The limited impact of policies in the integration dimension is per- haps surprising as it has been those policies that have shaped prominent debates about popular destination countries being a “soft touch” when it comes to im- migration. Debates that have triggered demands that countries with large num- bers of asylum-seekers should focus on restricting access to welfare (and prevent “welfare shopping”) when trying to regulate migration more effectively. Clearly the symbolic effects of welfare restrictions to migrants are greater than such policies’ substantive impact. In sum, existing studies suggest that some informa- tion about variations in policies on access to territory and work does inform the choices of migrants in a significant way. However, knowledge about variation in welfare regimes is either not available or less relevant when it comes to migrants’ choices of destination country.
5. Forced migration, collective action, and international cooperation
Having demonstrated the limitations of national policies aimed at regulating migration flows, it is important to stress that multilateral refugee protection efforts have shortcomings too, as they face a number of collective action chal- lenges. Crucially, these stem from the fact that a host State’s protection obliga- tions are only triggered once a refugee enters into its jurisdiction. The procedures for dealing with such obligations at that point can be lengthy and costly for host countries. As States face no such obligations for forced migrants outside their territory, there is an incentive for States to use restrictive policies unilaterally in an attempt to limit the number of forced migrants entering their territory, while, at least indirectly, encouraging migrants to seek protection in another country or region.24
In Europe, one of the objectives of the EU in creating a Common European Asylum System has been to curtail such free-riding dynamics by creating a:
level playing field, a system which guarantees to persons genuinely in need of protection access to a high level of protection under equivalent
22 Thielemann, “The Effectiveness of Asylum Policy”, 467–468. 23 Neumayer, “Asylum Destination Choice”, 176. 24 E.R. Thielemann (ed.), “European Burden-Sharing and Forced Migration”, Journal of Refugee Studies, 16(3),
2003, 225–235.
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conditions in all Member States while at the same time dealing fairly and efficiently with those found not to be in need of protection.25
Since the mid-1980s, the EU has developed a set of minimum standards on specific areas of asylum policy applicable in the legal systems of all Member States. Whether such common policies have strengthened or weakened the pro- tection of forced migrants has been the subject of considerable debate. It has sometimes been said that European cooperation on forced migration has led to the development of the “Fortress Europe”, as common policies have made it increasingly difficult for displaced persons to reach EU territory and benefit from effective protection.26 However, El-Enany and Thielemann27 have argued that European cooperation has improved protection standards for those that have managed to enter EU territory. They argue that the development of a common asylum law on the basis of EU minimum standards in this area has curtailed regulatory competition among the Member States and in doing so has halted the race to the bottom in protection standards in the EU. Rather than leading to policy harmonization at the “lowest common denominator”, EU policies have led to an upgrading of domestic laws in several Member States, strengthening protection standards for several groups of forced migrants.28 They show that European cooperation has had some significant rights-enhancing effects on pro- tection standards in four main legislative areas: reception, qualification, proced- ures, and return.
With regard to reception, they show that key elements of the Reception Directive29 have led to an upgrading of domestic standards in several Member States. EU law on reception conditions does not reflect the lowest common denominator of standards that previously existed in the Member States. Instead, the Reception Directive has led to the adoption of more favourable provisions for asylum-seekers at the national level.30 In particular, the Reception Directive has enhanced protection standards in areas such as rules on unaccompanied minors, access to health care and domestic labour markets.31
The Qualification Directive sets out the rules and principles to be applied by Member States in their identification of refugees and those deserving of
25 European Commission, Green Paper on the Future Common Asylum System, COM(2007) 301 final, 6 Jun. 2007.
26 J.C. Hathaway, “Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration”, Cornell International Law Journal, 26(3), 1993, 719–736.
27 E.R. Thielemann & N. El-Enany, “Refugee Protection as a Collective Action Problem: Is the EU Shirking its Responsibilities?”, European Security, 19(2), 2010, 209–229.
28 Ibid., 215. 29 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of
asylum seekers, OJ L 31/18, 6 Feb. 2003. 30 Odysseus Academic Network, Comparative Overview of the Implementation of the Directive 2003/9 of 27
January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in the EU Member States, Brussels, Odysseus Academic Network, Oct. 2006, 11, available at: http://www.unhcr.org/refworld/docid/ 484009fc2.html (last visited 14 Sep. 2012).
31 Ibid., 113.
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subsidiary protection status.32 The Directive significantly advanced standards in some Member States where, as a result of the new EU law, non-State actors of persecution were recognized and subsidiary protection status introduced into domestic law for the first time.33 The Directive’s provisions on subsidiary pro- tection have been welcomed more generally34 as they represent the first supra- national legislation in Europe that defines who, and under what conditions, qualifies for subsidiary protection, creating an obligation to grant this status to those who fulfil the criteria. In doing so, the Directive recognized the fact that persons fleeing the indiscriminate effects of violence associated with armed conflict, but who do not fulfil the criteria of the 1951 Refugee Convention,35
nevertheless require international protection. According to the UNHCR:
[T]he Qualification Directive has resulted in much greater conformity of legal interpretation on non-State actors of persecution or serious harm [. . .]. The shift to a focus on the availability of protection, rather than the actor of persecution or serious harm, should be commended. In France and Germany, the Directive has enlarged the scope of grounds for granting protection and thereby reinforced the protection system. This is illustrated by the increase in decisions by the authorities in Germany granting refugee status to Somalis.36
In relation to procedural rule in the European asylum system, the Procedures Directive37 has strengthened the law on procedural guarantees such as the op- portunity to communicate with the relevant authorities, access to an appeal process as well as the procedure for the withdrawal of refugee status. While not going far enough for some,38 the Directive has also improved standards of protection for individuals accessing EU territory in particular with regards to
32 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 Sep. 2004.
33 ELENA, The Impact of the EU Qualification Directive on International Protection, Report by the European Legal Network on Asylum, Oct. 2008, 5, available at: www.ecre.org/component/downloads/downloads/131 .html (last visited 14 Sep. 2012).
34 UNHCR, Asylum in the European Union: A Study of the Implementation of the Qualification Directive, Geneva, UNHCR, Nov. 2007, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid ¼473050632&page¼search (last visited 14 Sep. 2012).
35 Geneva Convention Relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954).
36 UNHCR, Asylum in the European Union, 9. 37 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status, OJ L 326/13, 13 Dec. 2005. 38 ECRE et al., Call for Withdrawal of the Asylum Procedures Directive, 22 Mar. 2004, available at: http://www
.statewatch.org/news/2004/mar/ngo-asylum-letter.pdf (last visited 14 Sep. 2012); UNHCR, Rudd Lubbers Calls for EU Asylum Laws Not to Contravene International Law, Press Release, Geneva, UNHCR, 24 Mar. 2004, available at: http://www.unhcr.org/40645bd77.html (last visited 14 Sep. 2012); European Parliament, European Parliament Legislative Resolution on the Amended Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 14203/ 2004�C6-0200/2004 – 2000/0238(CNS).
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so-called safe third-country rules.39 Under these provisions, asylum claims may be refused if the applicant can be returned to a ‘safe third country’ in which asylum-seekers could have found protection as a refugee, and in which they were physically present prior to arriving in the next country in which they are apply- ing for asylum. Furthermore, with regard to appeal rights, the Directive’s pro- visions on judicial scrutiny went considerably further than the previous status quo as it requires Member States to ensure an effective remedy before a court or tribunal as opposed to merely a reconsideration of the case by the administrative authority that took the original decision. Existing practices in countries like Greece therefore had to be revised. Moreover, in countries like the UK, the Directive required the authorities to improve their standards with regard to so called “manifestly unfounded” asylum claims. Under the Directive, Member States now have to ensure that applications for asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.40
Finally, regarding new EU rules for returning illegally staying third-country nationals (including failed asylum-seekers), the Return Directive41 provides for a set of rules to be applied throughout the removal process. It entails provisions concerning the form and process of return decisions, the use of coercive meas- ures, rules on detention and safeguards for migrants pending their removal. Again, several of the new EU provisions strengthen the rights of migrants com- pared to prior legislation in the Member States. Although national legislation generally provides that the confinement of returnees should take place in special facilities (different to those in which ordinary prisoners are detained), that has not always been the case in practice across the EU. That means that returnees can no longer be legally held in normal prison facilities (together with convicted criminals) as had been the practice in countries like Ireland.42 The Directive has also strengthened the rights of vulnerable groups (e.g. in terms of new rules on the conditions for detaining minors) and more generally made immigration detention subject to the principle of proportionality, providing that deprivation of liberty is justified only to prepare return or carry out the removal process and only in circumstances when the application of less coercive measures would not be sufficient. Moreover, under the Directive, detention orders that are not issued by judicial authorities have to provide for the possibility of judicial review.
39 D. Ackers, “The Negotiations on the Asylum Procedures Directive”, European Journal of Migration and Law, 7, 2005, 30.
40 Refugee Council, Refugee Council Response to UK Implementation of Council Directive 2005/85/EC of 1 December 2005 Laying Down Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, London, UK Refugee Council, Oct. 2007, 7, available at: http://www.refugee- council.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx?resource¼1D2934AB-8A31-407A-AB59- ED7428921637&mode¼link&guid¼d143856a233e4842839b54d030342c92 (last visited 14 Sep. 2012).
41 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/ 98, 16 Dec. 2008.
42 K. Hailbronner, Refugee Status in EU Member States and Return Policies, Study, Brussels, European Parliament, Jul. 2005, 144.
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In States where detention and re-entry bans for migrants could (in principle) previously be imposed without any restriction on time, Member States had to change their national legislations in order to establish upper time limits. Higher asylum standards in the Member States as a result of new EU law of course only matters to the extent to which new legal provisions are properly implemented by the Member States. And in this regard, it is well established that EU asylum policies are still suffering from significant implementation deficits.43
Overall, the analysis of these four key directives suggests that European cooperation and the development of the common asylum law on the basis of EU minimum standards in this area has curtailed regulatory competition and in doing so it has largely halted the race to the bottom in protection standards in the EU. Rather than leading to policy harmonization at the “lowest common denominator”, EU asylum law has led to significantly strengthened protection standards in the domestic asylum laws of several Member States.
These arguments about the rights enhancing impact of EU cooperation when it comes to rules that apply to migrants that have reached a Member State’s territory notwithstanding, there continues to be concern about the po- tentially detrimental impact of the EU in relation to forced migrants’ attempts to access EU territory in the first place. The EU has undertaken considerable measures to more effectively control its external borders, most notably through operations on behalf of the European Border Agency FRONTEX. There has been considerable criticism about the EU using new external border measures to deflect asylum-seekers from the Member States’ territory in an attempt to shift refugee responsibilities to other countries outside of the EU.44 However, there has been limited empirical support for these claims which have led others to suggest that this concern of regional cooperation in Europe reducing protection efforts by the EU when compared with similar developed countries in North America and elsewhere might be overstated.45 An empirical analysis of the total share of forced migrants that the EU deals with relative to all asylum applicants in the OECD area shows that the EU’s relative responsibilities have remained quite stable since the mid-1980s. This analysis (Figure 3) shows that the EU’s share of total asylum applications in the industrialized world has fluctuated significantly over time, but today is similar to its share from almost three decades ago. There is, therefore, little evidence to suggest that regional cooperation and the development of common asylum policies has led to free-riding by the EU.
43 For an overview, see: Odysseus Academic Network, Comparative Overview; UNHCR, Asylum in the European Union.
44 S. Lavenex, “‘Passing the Buck’: European Union Refugee Policies towards Central and Eastern Europe”, Journal of Refugee Studies, 11(2), 1998, 126–145; G. Noll, “Risky Games? A Theoretical Approach to Burden-Sharing in the Asylum Field”, Journal of Refugee Studies, 16(3), 2003, 236–252; E.M. Uçarer, “Human Insecurity: Burden-Shirking, Burden-Shifting, and Burden-Sharing in the Emergent European Asylum Regime”, International Politics, 43, 2006, 219–240; C. Levy, “Refugees, Europe, Camps/State of Exception: ‘Into the Zone’, the European Union and Extraterritorial Processing of Migrants, Refugees, and Asylum Seekers (Theories and Practice)”, Refugee Survey Quarterly, 29(1), 2010, 92–119.
45 Thielemann & El-Enany, “Refugee Protection”, 209.
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However, within a region, attempts to develop common policies to create a “level playing field” and bring about a more equitable distribution of responsibilities between States can be counterproductive. If structural factors are indeed often more important than policy-related pull factors in determining how responsi- bilities for forced migrants are distributed among countries, then the harmoniza- tion of policy measures might not achieve burden-sharing objectives. Even if international cooperation succeeded in fully harmonizing policies in this field, refugee responsibilities across countries can be expected to remain highly un- equal owing to differences in the structural pull factors that characterize receiving States.
Another example for the sometimes counter-productive effect of EU policy initiatives is the EU’s Dublin system.46 Under this system, Member States agreed on a mechanism that assigns responsibility for asylum-seekers in the EU to the “country of first entry”. In the case of secondary movements to another Member State, the system envisages return requests issued by this secondary destination country and eventually the actual transfer of individuals back to the country of first entry. In establishing this mechanism, the Member States have placed the responsibility for (and the cost of ) securing the EU’s external border dispropor- tionately onto the EU’s external border countries, which already face dispropor- tionate asylum burdens (see Figure 4). One finds that relative to their size, smaller countries such as Cyprus, Malta, and Sweden tend to make some of the largest contributions to EU refugee protection efforts, while the largest EU countries (such as Germany, France, or the UK) face much more limited responsibilities.
Figure 3. Relative share of asylum applicants in OECD countries, 1985–2007
0
10
20
30
40
50
60
70
80
90
1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 EU 27 Non-EU (27)
Source: UNHCR, Statistical Yearbook, Geneva, UNHCR, multiple years [author’s own calculations].
46 E.R. Thielemann & C. Armstrong, “EU Internal Security Cooperation under the Schengen and Dublin Systems”, European Security, 21(4), 2012 (forthcoming).
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It is reasonable to assume that the Dublin system’s “first country of entry” principle would further reinforce such inequalities and work to the advantage of the wealthier, core Member States and to the detriment of already more heavily burdened Member States at the external borders of the EU. When one analyses the operation of the Dublin system, this expectation is borne out in practice. Smaller, external border countries do, in fact, receive a disproportionate number of transfer requests (the majority of which are issued by the core Member States). This pattern becomes even more pronounced when the number of relative transfer requests received is measured proportionally against population size (see Figure 5).
Figure 4. Relative number of asylum applications received per 1,000 of population (2009)
Source: EUROSTAT, OECD [author’s own calculations; calculated by dividing total number of asylum applications received by a Member State by the total population size of that Member State (in thousands)].
Figure 5. Relative number of Dublin transfer requests received per 1,000 of population (2009)
Source: EUROSTAT, OECD [author’s own calculations; calculated by dividing total number of incoming requests received by a Member State by total population size (in thousands)].
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Finally, attempts to develop fairer and more effective EU burden-sharing mech- anisms through the creation of the EU ‘mass influx directive’ have only had limited success.47 While this initiative to establish an EU emergency reset- tlement mechanism was passed in the aftermath of the Kosovo refugee crisis, this mechanism has not been used since. The directive develops a range of ultimately non-binding mechanisms based on the principle of double voluntar- ism which means that the agreement of both the recipient State and the individuals concerned is required before protection seekers can be moved from one country to another. The fact that this directive was not called upon in the recent migration inflows into parts of Southern Europe that were triggered by the war in Libya casts serious doubts about the effectiveness of this legal instrument.
Given the shortcomings of regional responsibility-sharing initiatives,48 it is not surprising that there is a broad consensus in the literature on the ineffectiveness of more global policy initiatives on refugee burden sharing.49 The one excep- tion can be found in the context of large-scale refugee emergency situations, such as in Southeast Asia in the 1970s or in the Balkans in the 1990s, when sometimes quite effective ad hoc resettlement mechanisms such as the “Comprehensive Plan of Action” for the resettlement of Vietnamese refugees50
or the Kosovo Evacuation Programme51 were developed. However, these initia- tives were exceptional responses to particular crises, and States failed to institu- tionalize these into mechanisms that could be called upon if, and when, similar resettlement needs were to emerge again. Schuck’s proposal for such an institu- tionalization centred on the idea of a decentralized, market-based refugee sharing system52 has similarities to the Kyoto emission-trading scheme. According to this model, an international agency would assign a refugee protection quota to each participating State on the basis of which States would then be allowed to trade their quota by paying others (with money or in kind) to fulfil their obligations. However, the idea raised significant unease about treating refugees as commodities in inter-state transactions53 and was never considered seriously by policy-makers. Others have advocated the promotion of burden-sharing mechanisms that
47 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212/12, 20 Jul. 2001.
48 For a summary, see European Parliament, 2010. 49 J.C. Hathaway (ed.), Reconceiving International Refugee Law, Boston, Kluwer, 1997; P. Schuck, “Refugee
Burden-Sharing: A Modest Proposal”, Yale Journal of International Law, 22, 1997, 243–297; E.R. Thielemann & T. Dewan, “The Myth of Free-Riding: Refugee Protection and Implicit Burden-Sharing”, West European Politics, 29(2), 2006, 351–369; A. Betts, Protection by Persuasion: International Cooperation in the Refugee Regime, New York, Cornell University Press, 2009.
50 Schuck, “Refugee Burden-Sharing”, 254–259. 51 J. Van Selm (ed.), Kosovo’s Refugees in the European Union, London, Pinter, 2000. 52 Schuck, “Refugee Burden-Sharing”. 53 D. Anker, J. Fitzpatrick & A. Shacknove, “Crisis and Cure: A Reply to Hathaway/Neve and Schuck”,
Harvard Human Rights Journal, 11, 1998, 306.
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are based on an implicit trading logic that recognizes that States contribute to international collective goods such as refugee protection in different ways.54
In the refugee context, these include what might be called pro-active measures, which attempt to halt the escalation of potential refugee problems by, for instance, sending peacekeeping troops to a region in order to prevent or contain forced migration. Another set of contributions are those which can be called reactive measures. The latter measures deal with the consequences of refugee problems once they have occurred, in particular by admitting protection seekers to a host country’s territory. While issues of different types of protection contributions have been raised in international negotiations, they have not led to any new inter- national burden-sharing mechanisms.
In summary, it seems fair to say that until now, destination countries have shown an exaggerated concern over pull factors. This has side-lined other ini- tiatives aimed at tackling the root causes of forced migration. Both national and multi-lateral policy initiatives have so far overly focused their attention on reactive measures of border control, deterrence, return and burden sharing from the perspective of receiving countries. Despite some considerable rhetoric to the contrary, they have focused on post-crisis rescue mechanisms without sufficiently engaging and cooperating pro-actively with sending countries to address what has been referred to as the “silent crisis” underlying many refugee situations.55 They have failed to satisfactorily embrace the logic of pro-active migration management that would put greater emphasis on policies focused on addressing the underlying root causes of forced migration rather than just being primarily concerned with its consequences.56 So far, the track record of policies that seek to address the political, economic, demographic, and environmental problems that can lead to forced migration is far from impressive. Efforts to encourage foreign investment, fair trade, well-managed debt burdens, well-directed development aid, and effective reintegration programmes should be part of a long-term strategy to reduce push factors for forced migration and need to be given a higher priority.57
6. Conclusion
This article has argued that the effectiveness of policies in regulating migration should not be overestimated. Migration flows are often shaped by push factors that are often beyond the direct control of policy-makers in receiving countries. This is particularly true in the area of forced migration when the choices of migrants are often very limited and harder to influence through policies
54 Thielemann & Dewan, “The Myth of Free-Riding”, 351. 55 E. Piguet, P. Antoine & P. de Guchteneire, “Migration and Climate Change: An Overview”, Refugee Survey
Quarterly, 30(3), 2011, 21. 56 For a discussion of reactive versus pro-active policies in the area of forced migration, see Thielemann &
Dewan, “The Myth of Free-Riding”. 57 J. Crisp & D. Dessalegne, Refugee Protection and Migration Management: The Challenge for the UNHCR,
Working Paper No. 64, New Issues in Refugee Research, Geneva, UNHCR, Aug. 2002, 3�6.
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than in other areas of migration. Migration and non-migration policies can have a considerable impact on migration flows, but existing studies find little evidence for differences in welfare regimes driving migrants’ choices of host country. Policies, however, are only one of many pull factors that influence migration flows. Historical, economic, geographic, and other structural pull factors can have very powerful effects on migration flows and are often beyond the direct control of policy-makers. Finally, it has been argued here that regional cooper- ation and the establishment of common policies for displaced persons can raise protection standards. However, policy harmonization comes at the expense of States’ ability to use distinct national polices to counter-balance country-specific structural pull factors. The reinforcement of highly inequitable distributions of responsibilities for forced migrants might be an unintended consequence unless states give more substance to an international refugee burden-sharing agenda. However, there can be little doubt that, in principle, cooperation between States at regional and international levels does offer scope policies that deliver a fairer distribution of responsibilities and higher standards of protection for forced migrants. If well designed, such collaboration can help States address collective action problems and reconcile the tension between their control and protection objectives.
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