Leiden Law Blog

Refugees: From Problem to Crisis

Posted on by Lennart van Laake in Public Law
Refugees: From Problem to Crisis

In recent months the consensus in the media has appeared that we are witnessing a refugee ‘crisis’ at this moment. I do not seek to deny the exceptionality and urgency of the issues created by the flow of refugees into Europe. The shift from recognizing the increase in the flow of refugees as a ‘problem’ or ‘issue’ towards recognizing it as a ‘crisis’ creates both risks and opportunities. This blogpost briefly outlines both and argues that a strengthened commitment to human rights is needed to mitigate the risks of ‘crisis’-rhetoric.

One of the characteristics of a ‘crisis’ is that normal rules are unfit to manage it. A clear example of this is the ‘state of emergency’ which can be declared at a time of national crisis. At such a moment the authorities are able to exercise more invasive powers with a minimum of supervision. I do not contest the legitimacy of limiting accountability when doing so increases efficiency in situations where  every wasted second endangers the general population. However, the use emergency law has a long history of being used by authorities to justify overriding individual rights long after the crisis that justified enhancing their powers. Dictatorships in Latin America, the Apartheid regime in South Africa and colonial powers seeking to remain in control have committed heinous acts while responding to a (perceived) crisis by declaring a state of emergency.

Similarities are starting to appear between the reaction to the refugee ‘crisis’ and a state of emergency. At the root of both the state of emergency and ‘crisis’ rhetoric is the idea that decisive action has become more important than sticking to the correct formalities. In Hungary, no comparison is needed since the refugee crisis has officially turned into a state of emergency. Recently introduced emergency laws provide for draconian punishments for undocumented migrants and limit the effectiveness of the right to asylum. In the rest of the EU the suspension of normalcy has been marked by reinstating border controls within the Schengen area and the suspension of the “Dublin” system of allocating asylum seekers.

As the influx of refugees is a real and urgent issue, this allows governments to gain public support for the costly measures needed to absorb the influx of refugees in an orderly and humane manner. For instance, the decision of Germany to assume responsibility for all Syrian refugees that arrive on its territory is based on an exception of the normal rules for allocating asylum seekers laid down in the Dublin Regulation. In this case the urgency created by the ‘crisis’ rhetoric contributes to the willingness to sacrifice domestic priorities and resources in order to fix the problems faced by refugees.

However, as with the state of emergency, declaring a ‘refugee crisis’ can lead to unjustified repression of individuals rights. Upholding international law and human rights risks being seen as a formality that stands in the way of effective crisis management. The fence at the Hungarian border, the warships in the Mediterranean blowing up fishing boats and the downright refusals of various EU states to recognize the need to shelter those who flee for their lives are examples where the refugee ‘crisis’ has transformed respect of individual rights into a secondary concern. How can we distinguish clearly between unjustified repression and decisive action that sidesteps bureaucracy? The answer can be found in the acceptance that certain individual rights can never be traded against any gain in efficiency or public benefit.

On the 1st of September the European Court of Human Rights re-iterated the unconditional application, for which no crisis or emergency can be used as a justification, of the right to humane detention conditions for refugees. Such judgments are particularly relevant when the urgency of a (perceived) crisis tempts us to throw the old rules and procedures overboard. While there is no doubt about the need for reform of the current European asylum system, that should not mean that compliance with human rights should become optional.

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