Leiden Law Blog

Towards legal access for asylum seekers

Posted on by Mark Klaassen in Public Law
Towards legal access for asylum seekers

On 2 September the world was shocked about the drowning of a 3-year-old Syrian boy. Together with his parents and brother, he tried to reach the shores of the Greek island Kos. After their boat sank, he died tragically together with his five-year-old brother and their mother. Their father survived the journey.

The story of Aylan and Ghalib is not an isolated incident. It is reported that 2,600 asylum seekers have drowned in the Mediterranean this year alone. It is also not a new problem. The VU University in Amsterdam is coordinating an international research project monitoring ‘border deaths’ in the Mediterranean. If we know that this issue exists and we are indignant about it, why is no action being taken to solve this pressing problem?

To answer that question we have to look at the core of international and European asylum law. Persons with a reasonable fear of persecution in their home state or whose lives are in danger in that state have a right to international protection upon arrival in another state that is party to the Refugee Convention. However, that Convention or any other instrument of international law does not grant a right to entry that enables application for asylum. The EU Member States offer hardly any legal rights to entry for asylum seekers. That is why Syrians like Aylan and Ghalib who flee the conflict in their home state have to cross the Mediterranean in often unseaworthy boats. It is the enforcement of European borders that is forcing asylum seekers to evade these border controls.

Is there a solution to the problem of providing international protection while not providing for legal entry? Yes there is. In 2014, Germany offered 20,000 resettlement places to Syrian refugees. In the same year, the Netherlands offered 500 places for resettlement, of which 250 places were reserved for Syrians. That same year, the UNHCR urged countries around the world to admit 100,000 Syrian refugees. The example of Germany was not followed by other states. As a result, many Syrians found themselves forced to embark on journeys in unsafe boats.

The death of asylum seekers in the Mediterranean is the direct consequence of strict border controls and visa policies – a Syrian applying for an entry visa to the Schengen area will most likely be rejected because of the fear of settlement – and the lack of a legal route to entry for asylum seekers. The public outcry over the drowning of asylum seekers must be nuanced. These tragic events do not resemble a natural disaster like a tsunami, hurricane or flooding. Instead they are the consequence of migration and asylum policy as it has developed over the past years. Ironically, Europe does not stand alone in creating border policies that kill migrants. Australia and the United States face similar problems.

Why is it that while Germans warmly welcome asylum seekers at train stations and the public debate mostly concerns those asylum seekers that have already arrived in Europe, the underlying policies that are responsible for creating irregular refugee flows are hardly contested? Do we really need the death of two boys to wake us up? Do we accept a certain number of ‘border deaths’ within our aim to restrict immigration? These are the questions that need answering before we can find an answer to what has been labelled the ‘refugee crisis’. Crying over the deaths of Aylan and Ghalib may disturb our sleep  for one night, but this tragedy should open our eyes to the larger, underlying problems.

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