English interviews

A time of 'disbelief and despair': Europe's asylum agonies are eroding the rule of law in the Union

 

February 19, 2022

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In this Maqshosh interview, Josephine Liebl, the head of advocacy at ECRE, the European Council on Refugees and Exiles, warns of the corrosive effect the European Union's contortions over asylum law and policy are having on the region's cohesion.

 

by John Clamp

 

In the face of Europe's crumbling humanitarianism, fuelled by far-right tropes and identitarian politicking, the European Council on Refugees and Exiles is a reminder of the Union's founding ethic: to seek out and promote what unites communities and thus prevent future conflict.

 

ECRE is an alliance of over 100 civil society organizations in Europe, whose aim is to protect the rights of asylum seekers, refugees and displaced people. Right now it is facing hurricane headwinds, yet ECRE's head of advocacy, Josephine Liebl, is a picture of reasoned fortitude. Her deep concerns, shared by all those working to protect vulnerable, stateless exiles, are expressed in measured, even tones: 'Considering developments in Europe, [ECRE's current mode] is mostly defensive advocacy. At the moment we are firefighting, trying to prevent standards from being undermined through legislative proposals that are being put forward and into practice by member states in Europe.'

 

Liebl argues with some justification that compromises made by the European legislature, designed to accommodate retrogressive, anti-immigrant national policies in Hungary, Poland, and elsewhere, are undermining the EU's legal underpinning.

 

Allowing pushbacks and widespread mistreatment of asylum seekers in Europe's east and south contravenes international law, a body of jurisprudence built on the ashes of post-conflict Europe in a brief moment of global cooperation brought on by the universal sense of horror at what had happened. Turning a blind eye to European states contravening its precepts is the start of a very slippery slope. 'It was never very easy to work on the rights of refugees in Europe, but it's particularly difficult now, because European governments are emulating discourse and policy options developed by the extreme right in different European countries.

 

'The discourse has shifted significantly to the right. This has happened in parallel to a situation where member states are not complying with EU standards on asylum, and in some cases with specific EU policy. There is a problem with lack of compliance, not following the law, and this is going unchallenged.

 

'Instead of having strong European institutions that ensure accountability for ignoring EU law, now those institutions are almost taking a step in the direction of member states who are not complying, and trying to change the law in a way that would make it easier for them to do so. The suggestion is that 'if only the standards were lowered, member states would approve some form of common [agreed] law.'

 

'You have internal pressures moving politicians to the right as well as EU-wide pressures. Some of the core members of the EU don't want to upset the apple cart when it comes to the Eastern members, who have a fair bit of leverage. This is all in the context of the EU wanting to hang onto those Eastern states and Russia trying to carve them off.'

 

By surrendering to the demands of the so-called Visegrád Four bloc of Hungary, Poland, Slovakia and the Czech Republic, the Union is thereby chipping away at its own legitimacy. 'This goes to the core of what it means to be a member state', argues Liebl. 'There are new EU members doing everything in their power to undermine the EU in every policy area. It's not limited to asylum and migration. Yet asylum and migration is where this plays out a lot, because it is easier for these governments to stigmatize people who are refugees and who come from a third country.

 

'In terms of discrimination against minorities overall, it's shocking to see what is happening in Poland and Hungary. Even if there were not a single asylum seeker arriving, the EU would in any case have to find a way to deal with these member states and their constant subversion of the rule of law in the Union.'

 

This erosion of the Union's legal norms was brought into focus by the desperate scenes at the Polish-Belarussian border, where asylum seekers were 'instrumentalized' to apply political pressure on the EU. The bland terminology refers to third countries using asylum flows to destabilize neighbours by allowing them transit rights right up to EU borders. 'Recent [EU asylum] proposals put forward in December make an argument about the 'instrumentalisation' of immigration, [The proposals argue that] these cases are so specific that they have to create a mechanism to allow member states to derogate from EU asylum law, or from certain provisions of EU asylum law.

 

'We have numerous concerns about this, particularly the impact on individuals who are arriving. Conditions will be created that will make it easier for them to be pushed back out of the EU.'

 

Liebl insists, that this policy has much broader implications for the Union's cohesion. 'There is also a bigger question. What does it mean that the European Commission, the guardian of the treaties, proposes a legislative toolset that makes it possible for member states to ask for derogation from laws they have agreed to?

 

'It seems short-sighted. After all, if you start derogating on asylum policy, who's to say that there aren't many other laws you might start opting out of? The Commission is essentially allowing member states to be selective about which laws they want to adopt and which to ignore. That sounds like a dangerous precedent to set.'

 

Better-informed observers, who take a long view and read their history, say that demographic meltdown in Europe, with its baby-boomer bulge and attenuated birth rates, can be averted by allowing inward migration. Asylum seekers are often highly qualified future taxpayers whose relief at finding sanctuary makes them model, law-abiding citizens. Liebl singles out Angela Merkel's decision to welcome hundreds of thousands of Syrian refugees in 2015 as an exemplar. 'Studies [show that] the inclusion of the people who came in in 2015 was successful in terms of labour markets and society, and it has gone quite well. This is something that often doesn't get the same attention than the negative stuff.'

 

Yet she adds that this progressive policy was undermined by Germany's advocacy of a deal with Turkey to host EU-bound asylum seekers, which has cost the Union billions of dollars. '[Merkel] was a huge promoter of the Turkey deal. The idea of making a deal with a third country so that people don't arrive was a key part of that government's position, and that was harmful.'

 

In the long fight for justice for refugees, Liebl sees some cause for hope in 2022 and beyond. 'We now see with the new [German] coalition a potential for change. It's early days, but we are hopeful about the coalition agreement and the tone that has been struck, saying Germany is a country in need of migration and that migration is positive.'

 

Liebl says hope also springs from refugee-led civil society organizations, from the compassion of ordinary people who feed and shelter asylum seekers, often at risk to themselves, and from the work of ELENA, an EU-wide network of lawyers devoted to challenging oppressive asylum legislation in the Union's courts.

 

She adds that the sympathetic public reaction to unfolding events in Afghanistan last year was heartening, and the evident failures of the West's interventionist stance was a turning point. 'There was a real sense of compassion and shock back in August about the speed of the deterioration of the situation in Afghanistan.

 

'I think there was also a reckoning in many countries about the futility of military presence in third countries and their responsibility for that. We are going to have more of that in the coming months as different governments set up inquiries about what has happened.'

 

However, given the general drift in policy in the bloc, it can be hard to stay upbeat. 'I have been working on this for years, and the emotions that come up lie somewhere between disbelief and despair when we see the decisions that are being made and the positions that certain European policymakers are taking.

 

'It's difficult at times to [hold onto] the belief that things can be changed when with proposal after proposal you see that things are getting worse and the standards are slipping so quickly.'

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MQ