Olivia Flasch

Legal clarity on the European refugee crisis

I have tried to stall engaging in this debate for as long as I possibly could. I have long viewed it as an over-politicized attempt by the mainstream media to spark feelings of sadness and guilt in the European population, to which I did not want to contribute. But this has gone on long enough, and I cannot remain quiet. Despite the tremendous amount of media coverage of the migration crisis currently unfolding in Europe, all I hear is empty rhetoric and emotionally-charged arguments, which in my opinion, serve to manipulate and confuse the general public into believing it has certain obligations, which frankly it does not have. It is not my intention to seem heartless in this matter, but simply to make an effort to rationally outline the complex, but clear, legal issues surrounding this debate, as such efforts have been missing for far too long.

The definition of a refugee, and the obligations of countries towards refugees, is presented in the 1951 International Refugee Convention and its 1967 Protocol. According to these international legal instruments, a refugee is a person who:

…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…

This is a very specific definition. And its keyword is “persecution”. A migrant, on the other hand, is a person who leaves his or her country for other reasons not related to persecution, such as, but not limited to, for the purposes of employment, family reunification, or study. The main result of acquiring refugee status, as opposed to migrant status, is that the principle of non-refoulement comes into play. This principle ensures that the country to which you arrive will not return you to the country from which you came, as there is a well-founded risk that you will be persecuted upon return.

In addition to the International Refugee Convention, there are a number of regional legal documents that are of relevance to the situation. The European Union has built its own framework for the protection of refugees, which is based on the international convention. This framework is European Council Directive 2004/83/EC. It contains the same definition of a refugee as the international convention, but also incorporates a “subsidiary protection” clause. In this regard, a person who is eligible for subsidiary protection within the European Union, includes anyone who does not qualify as a refugee, but who would face a “real risk of suffering serious harm” if returned to his country of origin and “is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” Serious harm includes “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

A person qualifying for subsidiary protection within the European Union has fewer rights than a person with refugee status. For instance, that person’s residency permit only needs to be valid for one year, instead of three if he/she were a refugee, and the integration efforts required of the State towards that person are less than required if the person were a refugee, as it is presupposed that the person could return to his/her home country once the war ceases.

Finally, both under the international and the EU framework, all rights and benefits granted to refugees and persons qualifying for subsidiary protection are inapplicable if it is found upon initial investigation that the person has committed a serious crime (international or national) or he/she constitutes a danger to the community or the security of the host State. Furthermore, a person could cease to be eligible both for refugee status and the status of subsidiary protection, if it is found that the original reasons qualifying the person no longer exist (e.g. the war is over, the persons persecuting the individuals are dead), or if it is found that the person falsified their documents or created the reasons qualifying them for a particular status from their own doing just to become eligible.

Now, the situation we are currently facing in Europe is one comprising of three categories of people. First, there is a large influx of persons potentially qualifying for subsidiary protection. These would be all people arriving from Syria, which, after individual assessment, and assurances that they have not committed any serious crimes, etc. could be allowed temporary, and subsidiary, protection until the reasons for such protection cease to exist. Most probably, this would be a year at first, after which the circumstances could be investigated once again to see if they have changed. Second, there is a large influx of persons with migrant status, i.e. those that are not fleeing from indiscriminate violence or persecution. These would be all people arriving from other States, which, in Sweden, are mainly those currently coming from Iraq, Afghanistan, or Turkey. Finally, we have a certain percentage of refugees. Individuals who are facing persecution in their home country because of their race, religion, nationality, membership of a particular social group or political opinion. The qualifying for this status is not the majority. And ironically, it is probable that most people qualifying for this status cannot very easily jump on a boat and leave their country. We have heard stories, terrible stories, about Yazidis trying to escape from the evil clutches of ISIL. Odds are, they’re not on these boats.

Again, I am not trying to minimize the harsh reality of people fleeing, or moving, from their countries. I realize that regardless of the reason, it is a terrible situation to be in. But as the daughter of refugee parents, whose attempts to flee from the Soviet Union were continuously barred, who faced both political and religious persecution, first in the Soviet Union and then during the Communist Revolution in Poland in the 1960’s and 1970’s, and as the granddaughter of Holocaust survivors whose stories hardly need an introduction, I feel that what we need today is at least a practice of proper nomenclature.

Referring to the influx of persons to Europe collectively as “refugees” is not only erroneous, but also dangerous. Emotionally charged words like “refugee” appeal to the sentiment of the public, but may distract from the efforts to actually protect and save true refugees, who are facing torture and persecution for standing up against an authoritarian regime or terrorist group. These people should be a priority, and it is unlikely that most of them have made it, or will make it, to our shores.

To this statement, I am convinced that a number of people will argue that all of those who have come, will come, and are trying to come to Europe should be a priority. Whether “real” refugee or simply someone striving for a better lifestyle, we shouldn’t distinguish or discriminate, but open our hearts to all. While this is an admirable opinion, it is also a utopian one. Sweden currently accepts the largest percentage of migrants per capita in Europe, and in total numbers, is second only to Germany. Sweden and Germany are the two countries in Europe that present the easiest process towards permanent residency, and it is likely that Sweden possesses the most lenient assessment policies in this regard. The Prime Minister of Sweden declared this year that every person from Syria would receive permanent residency upon arrival, which already negates the necessary individual assessment methods outlined above. Not only is this dangerous; the individual assessment methods are meant to investigate whether anyone arriving is a potential danger to the community, but it is also irresponsible.

While Sweden takes in the largest percentage of migrants in Europe, it also has a completely failed integration system. We have enormous integration issues in Sweden, which require alteration before more people are accepted. With the current system, it is nearly impossible for newly arrived immigrants to ever feel at home here. The system does not allow people to become part of the society, part of the community. It doesn’t assist people in the necessary ways to feel like they belong. It creates anger, irritation, and frustration at being left outside of the clique. It has led to skyrocketing crime rates, with multiple ghetto-like areas, in which immigrants feel isolated. It is not morally correct to accept this amount of people, when you’re setting them up for failure. It is not right towards them, and it is not right towards the rest of the community.

It is not plausible for all people coming to Europe to collectively constitute a priority. There needs to be a difference in treatment, as outlined by these legal documents. The differences exist for a reason; they are not meant to be heartless or to confine people solely to a category. They are there, because when they were created, it was very clear that there is not an infinite amount of protective possibilities by each State. This remains the same. There is not an infinite amount of help that can be given. The help needs to be divided in accordance to who needs it the most. Unless the people in charge grasp this concept, there will be more suffering — both for those outside and inside of Europe.

About the Author
Olivia Flasch is an international lawyer who currently lives in London. She studied Public International Law in The Hague, and has a Master's in Law from the University of Oxford. Born into a Jewish family in Sweden, she writes about all things Jewish, as well as about Israel and the world from an international law perspective.