On the future of European migration policy From nationalism to transnationalism and back again

Ari Hirvonen*

Around seventy-years ago, Hannah Arendt said that refugees and stateless people will form “the most symptomatic group in contemporary politics.”1 Today, this most symptomatic group and the interaction between the emplaced and the displaced people is one of the most decisive issues for the future of European transnational polity and legal order.

The coexistence of the EU migration policy with the Member States policies in the same European legal space seemed to guarantee the progressive movement from minimum standards to the common asylum system based on harmonized legal rules and common procedures.2

In the 1999 Tampere Summit, there was an enthusiastic atmosphere for developing a common European asylum system (CEAS). The minimum standards and instruments foreseen by the Treaty of Amsterdam (1997) were successfully adopted. Ten years after, the ambition was reaffirmed. The aim was to go beyond minimum standards. The Stockholm Programme (2009) called for the development of “Europe of responsibility, solidarity and partnership in migration and asylum matters.”

The Charter of Fundamental Rights (2009) guarantees the right to asylum with due respect to the Geneva Convention (Art. 18). Therefore, under the EU law, there is a subjective right to be granted asylum. In 2012, Christian Kaunert and Sarah Léonard, wrote in an optimistic tone that this “is likely to lead to a strengthening of the asylum-seekers in the EU.”3

The current political climate differs dramatically from those days. Not only an integrated, sustainable and holistic refugee policy and a common asylum system is faltering, but also the principles of, on the one hand, international refugee law and the human rights, and on the other hand, solidarity and responsibility are increasingly downplayed.

The arrival of 32.000 refugees in 2015 was followed by legislative changes that reduced protection for asylum seekers and refugees. In example, the provision of the Finnish Alien Act providing residence permit on humanitarian grounds was repealed. European states are now concentrating on preventing people from migration, dissuading refugees to apply for asylum, erecting border sites using military technology and policing, implementing tough administrative practices on refugees, reducing the entitlements of refugees and asylum-seekers with regard to their access to health care, social benefits and labor markets, and criminalizing undocumented migrants.

In 2016, the Commission admitted that “there are still notable differences between the Member States.”4 These divergencies have increased in time and again. The nationalist agendas, legislation and practices are justified by the right of a sovereign state “to control the entry, residence and expulsion of aliens,” as affirmed by the ECtHR.5

As the right to decide about entry is reclaimed, it has often given priority over the ECHR and international human rights law. Especially Articles 2 and 3 of the ECHR are not taken seriously enough.

Even if the EU minimum standards of the directives have been adopted, they are disregarded in legal, administrative and social practices. The same is with universally applicable human rights which, especially for undocumented migrants, are inaccessible. Increasingly, asylum seekers are unable to participate in these rights.6 The European Court of Justice has interpreted the EU law “in order to accommodate the need for protection of fundamental individual rights.”7 This should be a major interpretation principle but in refugee cases this principle is most probable often ignored. (This would require European-= wide research).

If in 2008, the Commission’s Policy Plan on Asylum related to the principle of solidarit andy the sense of responsibility,8 today, as a result of the praised sovereign right to decide about borders and entry, the very sense of responsibility among the Member States is crumpling. Those states, like Greece, that faces the most migratory pressures, are left alone, at the same time, as some of the Member States have chosen a closed-door policy combined with militarized border zones. At the same time, the sense of responsibility that concerns refugees and their human rights is running low.

What has become of the EU migration policy and law that co-exist in the same hybrid legal space with the nationalist migration policies of the Member States?

The harmonization of migration policy and the construction of a coherent asylum system based on harmonized legal norms has to accept that there are different temporalities in the Member States what comes tocovered by this project, which is necessarily include a fluid and multitemporal process.9 However, migration policy diversity or refugee law pluralism is not in itself any kind of crisis if there would exist a constructive and rational migration policy discourse based on the fundamental principles of the EU legislation.

As we well know, this is not the case. The time of harmonization of the refugee law and streamlining the asylum process, seems to be over. There is no more a common political will and ambition of the Member States to construct an asylum system that emanates from the universal principles of humanity, human right and refugee law, and the fundamental rights and values of the EU. With the disagreements concerning refugees and migrants, the territoriality principle has been transformed into the practice of not recognizing rival legal authorities, like the EU and the ECtHR. The EU faces much more fundamental controversy than a mere conflict of jurisdiction in some specific migration norms or asylum cases. The fragmentation of European migration policy goes deeper than the tensions between unilateral and multilateral migration policies.

The claims raised by the transnational EU refugee policy and legislation are not only about the creation of a common asylum system but also about the relationship between national sovereignty and transnational law, national borders and free movement. Is this the first step – or after Brexit, the second one – towards a turn from transnationalism that goes beyond the dichotomy of national and inter-national political communities to the Westphalian world order?

Moreover, the nationalist political discourse, administrative and judicial practices, and legislative measures have defied not merely the integrated EU migration policy, but the principles and values the EU is founded on and that are declared in the Charter of Fundamental Rights. Legislative harmonization, which follows different temporalities, is allowed as long as spatial mis-temporalities take place in the normative fundamental framework of the EU that guarantees the coherence of the European law in its differences. Hence, xenophobic political, administrative and legislative actions do not end up in an adjustable and fluid process of harmonization but in a constitutive crisis of the European migration policy, asylum system, and responsibility for refugees and their human rights.

I would propose four scenarios – reflecting the five scenarios of the 2017 White Paper – for the future of European migration policy.

First, those who want more do more (accept the inevitable). The EU puts on hold the simultaneous creation of a common European asylum system. The exclusive right of the state to determine its borders is affirmed simultaneously as the transnational and universalist substantive claims are pulled out. Different standards for different Member States are allowed. The Europe of different speeds in migration policy is Europe that widens the gap between, on the one hand, migration directives and the EU’s fundamental rights, and on the other hand, the failure of some Members States to protect asylum-seekers and migrants. Immanent to the multispeed EU migration policy would be an asymmetry – or even aporia – between the EU law and national refugee law. Consequently, in some states refugees’ rights are and will be unenforceable.

Second, carrying on (yield to xenophobic discourses). The EU assimilates the neo-nationalist policies and practices either by rewriting proposals for the migration regulations or disregarding the directives to give the power back to national institutions and practices. Based on crucial question who belongs to the national people and the transnational polity, would define asylum-seekers as unplaced who have no proper place in the European territory. The EU would be transformed into a paradoxical or perverse neo-nationalist transnationalism, which would part with the EU’s constitutional foundations.

Third, doing less more efficiently (prioritize security principle). To justify the sidelining of migrants’ rights, the EU could emphasize the security principle. To safeguard the European polity, which guarantees democracy and equality, the European hybrid legal space is to be protected. This kind of sentiment is detectable in the Commission’s concentration for creating instruments that enhance the capacity to return irregular migrants present in the EU.10 The security principle would become both, a harmonizing force and locomotive for the migration policy. This could be easily connected with the scenario of “nothing but single market.”

Fourth, doing much more together (defeat neo-nationalism by universalism). Let me refer to the concurring opinion of the ECtHR Judge Pinto de Albuquerque in the Hirsi Jamaa case. According to him, the case was about the international protection of a refugee, which requires compatibility of, on the one hand, immigration and border-control policies, and on the other hand, international law. In the case, he wrote, the ultimate question was “how Europe should recognize that refugees have ‘right to have rights,’ to quote Hannah Arendt.”11

In 1951, for Arendt – before the Geneva Convention and the EU – every human being should have a moral right to have legal rights. Today, the Article 18 of the EU Charter of Fundamental Rights guarantees the right to asylum, as it should be interpreted and not merely as a right to seek asylum. This imposes a positive obligation on the Member States to guarantee this right, that is, the Article 18 sets the legal right to have most of the EU fundamental rights.

Already Immanuel Kant considered in his To Perpetual Peace, a preliminary text for the EU, that hospitability is not a question of humanitarian charity or philanthropy but a right of a foreigner to be treated with hospitability and not to be turned away if this would destroy him. The right to visit (Besuchsrecht), that is, the right “to present oneself to society,” Kant says, “belongs to all human beings.”12 The UN Global Compact of Refugees affirms Arendt’s and Kant’s point: “Protecting and caring for refugees is life-saving for the individuals involved and an investment in the future.”13

The Commission’s Policy Plan on Asylum (2008) defined the three pillars of the CEAS as 1) legislative harmonization, 2) practical cooperation and 3) solidarity. , I would add the fourth pillar -, the unconditional respect of the rights of refugees, which includes the right to asylum.14

As Advocate General said in the X and X case, his conclusions were based on taking into account the universal values on which the EU is based, including protection of fundamental rights of the most vulnerable persons and their right to international protection.: It is crucial that “at a time when borders are closing and walls are being built, the Member States do not escape their responsibilities, as they follow the EU law or, if you allow me the expression, their EU law and our EU law.”15

What about those Member States that are not willing to commit themselves to these four pillars, to their and our EU law? It is not merely about the speed at which they participate in the multidimensional and multitemporal process of harmonization of migration policy and asylum system. Any kind of legal, administrative or institutional xenophobic migration practices, which ignore the EU law and the universal

human rights and refugee law, does not merely fragment the common European asylum policy. They ignore the European constitutional principles and values.

Perhaps, the Article 7 of the Treaty of European Union (TUE) should be used more actively. Perhaps, the CJEU and ECtHR would have the main role here, which I admit, would bring the problem of democracy deficit to the fore. Nonetheless, it is not only the courts that create European migration policy based on human rights, even though they may show the way or act as an avant-garde of human rights positive refugee law. Perhaps, European citizens should take the ultimate political responsibility. Or, perhaps, there is something rotten in the EU – either in its constitutional structure or in its political practices.

* Prof Ari Hirvonen, University Lecturer and Director of the Doctoral Programme in Law, University of Helsinki, Helsinki, Finland

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This presentation was delivered during the roundtable “Europe on the Move: Open or Closed Borders?” held in the premises of GLOBSEC in Slovakia on 2-3 March 2020 and is published within GLOSBEC DIFF GOV — „European Governance: Potential of Differentiated Cooperation“ project supported by Jean Monnet Activities of the EU Programme Erasmus+.

The views expressed in this article are the author’s own and do not necessarily reflect GLOBSEC’s policy.

The European Commission support for the production of this publication does not constitute an endorsement of the contents. which reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.

1    Hannah Arendt, The Origins of Totalitarianism, Harvest Book (1973), 277.
2   A sustainable and fair Dublin system, a more efficient common fight against irregular migration, a genuine European Agency for Asylum, common procedural arrangements, standards for the recognitions of persons in need of international protection and their rights, reception conditions.
3  The European Union Asylum Policey. Refugee Survey Quarterly 31/4 (2012) 1-20, 17.
4   European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repeating Directive 2013/32/EU, 2. COM(2016) 467 final, 13.7.2016.
5   See example, F.G. v. Sweden [GC], no. 43611/11, § 111, ECtHR 2016; Hirsi Jamaa v. Italy [GC], no. 27765/09, § 113; ECtHR 2012.
6   Gregor Noll, Why Human Rights Fail to Protect Undocumented Migrants. European Journal of Migration and Law, 12/2 (2010) 241-272, 241-242.
7   Vasillis Hatzopoulos, Casual but Smart. In Jörg Monar (ed.), The Institutional Dimensions of the European Union’s Area of Freedom, Security and Justice. Peter Lang (2010), 145-166, 153.
8   Commission of the European Communities, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee on Regions: Policy Plan on Asylum – An Integrated Approach to Protection across the EU. COM(2008) 260, 17 June 2008.
9   I owe ideas of multitemporality in the hybrid legal space to Kaarlo Tuori. See his “The Many Senses of ‘the Many Constitutions of Europe.’”
10   See Commission Recommendation of 7.3.2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council. COM(2017) 1600 final. The refugee legislation is interpreted in a way that Jacques Derrida would call hostipitalité, hostipitality, that is, in a way that hospitality (universal human rights and the right to asylum) is not totally ignored but intimately entangled with hostility (nationalist citizens’ rights and the right to define entrance criteria).
11   Hirsi Jamaa v. Italy [GC], no. 27765/09, Concurring Opinion of Judge Pinto de Albuquerque, ECtHR 2012,
12   Kant, Toward Perpetual Peace, 329.
13   Report of the United Nations High Commissioner for Refugees. Global Compact on Refugees. General assembly, A/73/12 (Part II), 13.9.2018, § 8.
14   Commission of the European Communities, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee on Regions: Policy Plan on Asylum – An Integrated Approach to Protection across the EU. COM(2008) 260, 17 June 2008.
15   In the case, the applicants were Syrian nationals who applied visas at the Belgian Embassy in Lebanon to enable them to leave the besieged city of Aleppo in order to travel to Belgium and apply asylum in there. The Czech Republic warned, in “a particularly alarmist tone,” the Court of the fatal consequences which would result from a judgment to the effect that the Member States are obliged to issue humanitarian visas under Article 25(1)(a) of the Visa Code. Opinion of Advocate General Mengozzi delivered on 7 February 2017. Case C-638/16 PPU, X, X v. Belgium, § 4. The Court decided the case against the recommendations of the AG leaving the right to responsibility for granting humanitarian visas with the Member States. The case was a missed opportunity for the Court to limit the national sovereignty by humanitarian grounds.