Are we best serving some of the world's most desperate people?by David Goodhart, Cathryn Costello / October 15, 2015 / Leave a comment
Is our definition of "refugee" too wide?
David Goodhart—Prospect’s editor at large
Europe’s refugee crisis is also a crisis of moral and political over-reach. Over the past few decades the grounds for seeking refuge in Europe have been ever widened by well-intentioned lawyers with only a distant connection to democratic politics. Until now it was of little consequence because, despite spikes such as the 1990s Balkan wars, few people were able to reach Europe to claim that right to protection.
With the collapse of parts of Europe’s external border the trickle could become an annual flood of one million or more. Unless we restore the borders, narrow the definition of refugee and insist that people apply outside Europe, the flood will become permanent. The generous impulse of Europeans to help the persecuted could be easily realised when there were discreet crises involving finite numbers; East African Asians, Somalis, Bosnians, for example. But now, thanks to long-running conflicts and new communications and transport infrastructure, many more can and want to come. Our refugee laws now signal a greater openness than we are prepared to honour.
The 1951 Refugee Convention giving refugee status to those with “well founded fear of persecution” could now in principle be used by hundreds of millions. Protection now extends to anyone suffering “serious harm… as a result of indiscriminate violence in situations of international or internal armed conflict.” That means everyone living in a conflict zone: another few hundred million.
Not all will come, but by giving up on selecting the most vulnerable we have created a free for all with the most resourceful able to force their way in. We may feel sorry for Syrian doctors and engineers but in a world in which a child dies every minute from malaria they do not have first call on our generosity: their lives are not endangered in camps and they are the people Syria needs when the conflict ends.
One million people a year seems nothing for a continent of 500m, but the cumulative effect, coming on top of large scale legal immigration, could transform our societies in a few decades; leaving us less open and less willing to reach out to fellow citizens.
Cathryn Costello—Andrew W Mellon Associate Professor of International Human Rights Law
The EU definition of a refugee is narrower than that used in Africa—where it includes those fleeing “events seriously disturbing public order”—and across Latin America. In the EU, beyond the 1951 Convention, protection is afforded to those fleeing only some specified types of “serious harm,” including intense indiscriminate conflicts.
The definition is not the problem, displacement is. There are currently more displaced persons than since the end of the Second World War. Most (roughly 40m) are internally displaced persons (who are often unable to flee), and 20m refugees of whom four million are Syrian. In a world of seven billion, their lack of protection is a problem of politics, not capacity.
This year, about half of those arriving in Europe by boat are Syrian, 12 per cent from Afghanistan, and 9 per cent from Eritrea. When people from these three countries claim asylum in the UK, Germany, or indeed Canada, (to take just one example of another country that applies the 1951 refugee definition), they tend to be recognised as refugees. In 2014, Canada recognised applicants from those three countries as refugees in around 90 per cent of cases.
The crisis in Europe demonstrates many political failures. To name just three: there is a crisis of legality, as some EU states breach their international obligations; a failure to support refugee protection outside and across Europe; and a humanitarian crisis of unsafe journeys by sea. Food aid to refugees in Turkey, Lebanon and Jordan was cut last year, and work and education rights are not guaranteed there. Refugees need a place to live, not somewhere to eke out a bare existence. They make dangerous boat journeys in desperation because of border controls. European visa requirements and carriers sanctions prevent them from using normal transport. Offering safe access to protection means lifting carrier sanctions, or issuing humanitarian visas.
A tiny proportion of the world’s refugees seek protection in Europe, but if the largest and richest regional bloc in the world does not support the global regime, we cannot demand that other countries protect them.
Your view illustrates the detachment of legal idealism from the messy reality of politics. To assert rights on behalf of global migrants does not mean Europeans accept the obligations. This did not matter when few people could reach Europe. The lack of political legitimacy does matter now people are coming in such large numbers.
The 1951 Convention and its widening definition has been entirely lawyer-led, including the 1967 decision to extend its remit from Europe to the whole world. The fact that EU governments and the European Parliament ratified the “serious harm” directive of 2004 does not mean European citizens know about it or agree with it.
If France elected a racist government that persecuted minorities I have no doubt that we would open our doors to them, but we cannot and should not accept all those around the world—potentially hundreds of millions—who are caught up in conflicts.
Where I agree with you, is that we should end the catch-22 of proclaiming our willingness to protect, but refusing entry to those wanting to claim it. Europe’s official front door is, as you say, largely closed, though the back door has been left flapping open.
The answer is to allow people to apply for asylum from outside Europe in embassies or refugee camps. Those accepted can travel here safely. This will work only if we select those whose lives are in immediate danger or who are suffering persecution. For everyone else the priority is to make life bearable in the camps. Most refugees stay close to their countries of origin. That should remain the case and we should fulfil our obligations with safe havens.
Your claim that protection should be given only to those in “immediate danger,” ignores international law, and is simply unworkable.
Of the four million Syrian refugees, 95 per cent remain in four countries: Lebanon, Jordan, Turkey and Iraq. Your implication that most are in camps is—quite simply—wrong. A small fraction are in camps, the vast majority are living in whatever accommodation they can find. We agree much more aid should be given to support refugees in their regions of origin, but isn’t Turkey in Europe? Your imagined world in which Lebanon, and other neighbours, can accommodate an unlimited number of refugees is contradicted by the facts. We cannot expect four countries to host 95 per cent of Syrian refugees, or contain them if they seek to leave.
It’s not “idealism” to assert that EU states have obligations to refugees. The issue is that our commitment is now being tested. Aside from providing protection to those who reach the territory, states may choose how they wish to support the refugee system. The UK gets comparatively few asylum seekers, currently 494 asylum seekers per million of its population, compared to Sweden’s 8,365 and Germany’s 2,513. It has opted out of the EU relocation plans, and its offer to resettle 20,000 Syrians from the neighbouring countries over five years is derisory.
How do you propose to end the deaths at sea? People in urgent need of protection are turning to Europe. How, in law and in conscience, do you suggest we turn them away?
Yes, I have been arguing that the premise of the current refugee regime, that you regard as a given beyond politics, is wrong!
Our definitions of who can claim protection, combined with an open door to those who are prepared to take some risks, is creating an incentive to move to Europe for the most mobile, and best educated, among the world’s 60m displaced persons.
Yes we do need to turn some people away. They are in most cases already protected; they want our way of life. The current flow is not a symbol of European virtue. In the short term it relieves some pressure on poor neighbouring countries but the battle at our border fails to prioritise the most vulnerable, and it weakens poor and conflict-ridden states by stripping out their ablest citizens.
It is unfair on the EU border states and some voluntary burden sharing is in order, and why not from Japan and Saudi Arabia too? The UK has been less exposed to this refugee flow than the earlier Balkan one and should offer to take rather more than 20,000.
Most of us in rich countries want our governments to help but without too big a bill and without changing our societies too fast. We also want to help in a way that doesn’t keep the bandwagon rolling, that means selecting the most needy from the neighbouring countries which should be incentivised to run large camps to high standards.
Most people in the aid world think it is better for displaced people to remain as close as possible to their countries. Do you disagree? If so how many should Britain take each year? Is a well-fed and sheltered Syrian engineer who can afford to pay to come to Europe more deserving of a right to start over than a starving child in Mali? If the rules insist that we give preference to the former because he can present himself at our door then the rules need changing.
I’m concerned this exchange will not have enlightened readers, so I include some references to works that inform my views.
EU law expands refugee protection beyond the 1951 definition, but not much. The UNHCR’s Safe at Last study showed the limited impact of its “indiscriminate violence” provision, sometimes being less protective than previous national law. Refugee protection is limited, many are being turned away, such as those from the Balkans, but Syrians, Eritreans and Iraqis tend to meet the refugee definition.
I am all for questioning legal categories and reforming them, but most who think deeply about the definition find it too narrow, such as my colleague Alexander Betts’s work on survival migration. However, there is a key difference between refugees and other potential migrants. Obligations to the world’s poor can be met with aid, but refugees need a status that allows them to start over.
To suggest refugees should wait in camps until wars end displays ignorance of past failures. Camps should only be a temporary measure. In the longer term, they keep refugees alive, but prevent them from living, as Elizabeth Dunn has put it. We are four years into the Syrian war. Protracted encampment and other forms marginalised limbo are a disaster both for refugees and host communities.
Looking ahead to re-building a peaceful Syria or a democratic Eritrea is all well and good; repatriation is an important but complex part of that process, as Katy Long’s work has shown. But the crisis at Europe’s borders is happening, now. Those concerned about the European crisis should focus on safe passage. If Europe plays its part it could lead a global initiative for further solutions, helping to create futures for many refugees.
Keeping refugees alive is not the same as letting them live. A small minority are turning to Europe for protection. We are obliged to provide it.