The inability to protect refugees in Europe, a not very warm welcome

The refugee crisis that has shaken the old continent since 2015 has not stopped growing. European countries have seen the need to restrict their migration policies, reaching prohibitive scenarios due to the excess of asylum applications. Due to this, the institutional framework that has characterized the so-called Schengen Area is overwhelmed by the inability to act outside of the current crisis that is plaguing Europe, limiting the protection of the human rights of migrants.

The question of definition and application of policies around asylum have only weakened its international regulation. When it comes to application, for example, the Universal Declaration of Human Rights and the 1967 Declaration on Territorial Asylum are taken into account. In terms of definition, there are multiple conceptions of who should be considered a refugee.

For the purposes of this article, the description of refugee registered in the Addis Ababa Convention (1969) is taken into account:

[…] will apply to any person who, due to external aggression, occupation, foreign domination, or events that seriously disturb public order, in all or in part of their country of origin or nationality, is forced to leave their place of habitual residence to seek refuge elsewhere outside their country of origin or nationality.

In the same way, with the transformation of international relations, human mobility also suffers changes in all areas. The concept of refugee adopted in the 1951 Convention is insufficient today. In this sense, when the definitions established in the base agreements on the subject are taken as a reference, and are applied in critical approaches to the reality of the 21st century, their content escapes international protection, especially since they fail to cover groups of specific refugees who find themselves in need of fleeing to another destination.

In addition to the problem surrounding the definition, the lack of a system that allows the registration and control of refugees stands out. The United Nations High Commissioner for Refugees (UNHCR) is the international organization par excellence which, among other functions, is in charge of collecting statistical data at a global, regional and local level. In its 2021 report, UNHCR added more than 3.5 million refugees compared to the previous year, for a total sum of 26.4 million.

In 2020 the European continent counted 6,779,000 refugees and displaced Venezuelans. For its part, Turkey occupies first place in the list of the countries with the greatest reception, since one in five people find asylum in Turkish territory (UNHCR, 2021). Likewise, the ten countries of origin that registered the most migrants in Europe during 2021 were (Flow Monitoring, s/f):

1. Tunisia: 15,679
2. Morocco: 15,407
3. Sub-Saharans (unidentified): 15,077
4. Algeria: 13,344
5. Afghanistan: 11,439
6. Egypt: 8,877 7.Bangladesh: 7,959
7. Syrian Arab Republic: 6,188
8. Islamic Republic Iran: 4,158
9. Ivory Coast: 4,041

According to Flow Monitoring, the monitoring site of the International Organization for Migration (IOM), in 2021 151,417 refugees arrived in Europe, of which 114,275 did so by sea and 25,489 by land. In one of the most recent reports, the IOM determined that during that year 47,405 migrants and refugees were registered through the three known routes: 21,516 moved through the Mediterranean to Italy and Malta; 13,403 through the Western Mediterranean and the African Atlantic routes and the remaining percentage through the Eastern Mediterranean.

Schengen Zone

The Schengen zone or space refers to a regulation of refuge and free borders in Europe. The context of its creation is marked by the fall of socialist regimes, the economic recession and the increase in asylum applications at the end of the 20th century. Thus, the Schengen Agreement and the Dublin Agreement were established, both with restrictive measures in this area (Arenas, 1998).

On the other hand, the increase in asylum applications in the 1980s resulted in the Single European Act in 1986, which implied the abolition of internal borders while trying to reach a mutually agreed market. However, the policies continue with the restriction of passage to the present. The efforts of European countries in the last 10 years have been limited to circumscribing the transit and permanence of refugees and migrants, which is why other alternatives have been generated to reach Europe.

Likewise, the Schengen and Dublin Agreements achieved the identification of the terms “refugee” and “asylum seeker” based on the 1951 Convention. Under these agreements, current European asylum policy is mainly governed by the securitization of the internal market, the free circulation of people and the control of entry to foreigners.

The Schengen Area was formed with 26 countries, of which 22 are members of the European Union: Germany, Austria, Belgium, Denmark, Slovenia, Spain, Estonia, Finland, France, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein , Lithuania, Luxembourg, Malta, Norway, the Netherlands, Poland, Portugal, the Czech Republic, the Slovak Republic, Sweden and Switzerland (Ministry of Foreign Affairs of the Government of Chile, s/f)

The central objective of this space is the "gradual abolition of controls at the State border, transferring this control to the external borders with respect to foreigners from third countries" (Corella, 2016). In addition to this, the long-term goals gave rise to the Schengen Application Agreement, which consists of 142 articles. The aforementioned countries sought to adapt their legislation to this common framework of intergovernmental cooperation in favor of the right to asylum.

This Agreement tries to intensify the ties of cooperation between the member countries by sharing a common border. The States belonging to the European Union enter into a socio-political debate when discussing the problem of securitization in their area of influence. The regional emergency of the refugee crisis on the continent has called into question the political management and effectiveness of the Common European Asylum System (SECA), especially in relation to the multidimensional European responsibility for humanitarian protection that the right to asylum entails.

The lack of cohesion among the members of the Schengen area prevents national and intergovernmental efforts from giving favorable results in the face of the increase in asylum seekers. An example of the above is projected from September 2015, the year in which Germany, Austria, Belgium, Denmark, Slovenia, Hungary, Norway and Sweden, proposed to restore control of their internal borders. Internal security threats and public order were the main concerns that led these countries to act, due to the increasing arrival of undocumented people (Espuche & Imbert, 2016).

Among the main challenges of the Schengen Area for the creation of a fair refugee policy are:

1. Definition: Making a common immigration and asylum policy, in addition to degrading the status as refugee, deteriorates European ideals regarding how to deal with the crisis on the continent. Learning to differentiate the conceptual terms facilitates the task of establishing ad hoc policies for everyone, whether they are refugees or migrants. In the same way, this gives justification to countries that can exclude asylum applications, sticking to their own conception of refugee.
2. Content: More importance should be given to the creation of a humanitarian protection policy for refugees, instead of restrictions on free movement, entry and the right of asylum. It is necessary to establish the refugee crisis as a regional urgency in the political agendas, work within a framework of common interest and adopt aligned positions according to the situation.
3. Protection: Criticism of the Convention falls on the lack of jurisdictional control, as well as on the little participation of UNHCR to expand the proposals on the right of asylum and national borders. As a consequence, there are no institutional or governmental priorities to act in response to the humanitarian needs of refugees. Countries' attention is focused on combating illegal immigration and preventing abuse of asylum. For this reason, the contradiction between practice and what is written, that is, between the original foundations of the Schengen Agreement and the erroneous idea of a “strengthened Europe” continues to grow.