Constitutional Law, Dublin III, European Court of Justice, Immigration and Asylum

More on the 2015 Refugee Crisis and the Rule of Law: A Response to Steinbeis

Maximilian Steinbeis, author of a recent book arguing for the legality of Angela Merkel’s 2015 decision to open Germany’s borders, addresses my post on the issue from a few days ago. Steinbeis begins his post: “An interesting example of the strategies with which some proponents of the illegality thesis [i.e., the argument that Merkel’s decision to suspend border controls in 2015 was illegal] immunize themselves against any criticism from a legal standpoint.” He then quotes a brief section from the conclusion of my post, in which I pointed out many reasons why the argument for the legality of the 2015 border-opening was ineffective from a political standpoint.

The first thing to note in response is that, contrary to what Steinbeis maintains, I did not endorse the illegality thesis. I simply put forward the arguments on both sides, including a detailed description of the most persuasive and well-founded argument for the legality of the decision. During that discussion, I noted that “under Dublin III, it was legal for Germany to permit people to cross into its territory.”

I then asked a question very few people have asked about this issue: How persuasive, from a legal standpoint and a political standpoint, is the legality thesis? Steinbeis (g) and Detjen, along with dozens of other lawyers (g) and non-lawyers (g)  have extensively attacked the illegality argument, both from a legal and a political-social perspective.

What I did in my post is to subject the pro-legality argument to a similar critique. Note, once again, that I am not saying opening the border was illegal. I have never said that. My initial post was scrupulously neutral. Further, I gave a summary of the most persuasive argument for its legality. So I am not a “proponent” of the illegality hypothesis.

I merely pointed out that the argument for legality had many logical and political problems — which is why the German politicians who opened the borders decided not to use that argument.

I. Background: A Predictable, and Predicted Collapse in the Rule of Law

Let’s begin at the beginning. In 2014 and early-to-mid 2015, signs began increasing that large numbers of Syrians and Iraqis were planning to try to emigrate to Europe to claim refugee status. Merkel was warned repeatedly by security experts in early 2015 that the trickle of refugees and others currently transiting by boat from Turkey to Greece could become a flood. Merkel was under pressure to do something about the situation, but took no decisive action. Nor did the EU do anything to enhance border security or set up a system for processing mass numbers of refugees, even though it was evident to all informed observers that a large wave of refugees was about to start heading for Greece.

As the refugees began arriving, Greece was the first European country to break its own laws and EU laws. Nationals of Turkey, Syria, Iraq, and virtually all other countries represented in the 2015 migrant wave are subject to a visa requirement, according to the Greek Foreign ministry website. With few exceptions, none of the 2015 arrivals had such a visa. Therefore, they were illegal immigrants. Of course, under international law, it is lawful to illegally enter a country to claim political asylum. Further, under the Dublin III guidelines, “Where it is established, on the basis of proof or circumstantial evidence … that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection.” It was, of course, obvious that arrivals were entering in Greece. So Greece, to comply with its own law, should have denied the migrants entry unless they filed a claim for protection under asylum or refugee laws.

Greece failed to do so. In fact, it could not have done so. Greece’s system for evaluating asylum claims had been judged to have “serious shortcomings” by the ECJ already in 2011, long before masses of people began appearing on its shores. Yet nothing was done to improve Greece’s capacity to handle asylum applications, even though it was a front-line state which would obviously be required to handle a large number of these applications under the existing regulations and Dublin III, which entered into force in 2013.

Was the mass breakdown in the rule of law foreseeable? Of course. In 2013, the year Dublin III was adopted, a commentator wrote:

Far from promoting inter-State solidarity, a long-standing EU goal, it seems that the Dublin system has shifted responsibility for refugee protection toward the MS in Europe’s southern and eastern regions. Indeed there has been an 87 per cent increase in asylum levels in Southern European countries.[23] The principal issue with the [Dublin Regulation] III is that it did not alleviate the problems caused by the DR II’s ‘burden shifting’ scheme. (emphasis added)

Anyone could have foreseen the chaos which would arise if large numbers of refugees entered through Greece. Yet instead of changing this failed system, the EU kept its main aspects. Meaning that Greece — already recognized as having an asylum system with “serious shortcomings” — was again put on the front line.

So predictably, instead of fulfilling its obligations under Dublin III, Greece permitted persons to enter its territory with no legal basis, and did not required them to follow the formal procedure for obtaining a legal basis to do so. Notable, if Greece had followed the law, requiring the 2015 arrivals to file for asylum, most of those claims should have been rejected and sent back.

First, even many Syrians who fled to Europe had only a questionable claim to protection, because they had already found refuge in camps on the Turkish border. A refugee is not entitled to seek out the country they wish to claim protection in. Indeed, German courts have repeatedly held, consistent with international obligations, that migrants are not entitled to refugee protection if they have access to areas within their own country of origin (g) in which they will not face persecution. Thus, a fortiori (as we lawyers say), as soon as refugees have found refuge in a country in which they need not fear persecution, they are no longer entitled to asylum in another country. They are still classified as refugees, and may seek protection in another country, but they are not entitled to it.

Further, about 50% of the people arriving in Greece and Italy in 2015 and 2016 came from countries which were not at war, including Nigeria, the Maghreb countries, India, Pakistan, Burma, Cameroon, Ghana — the list goes on. These persons generally found their way to Turkey by some means, then blended in with the stream of migrants, hoping to make their way to Northwest Europe. Almost none of them has any claim to any protection under international law. In Germany, only 1/3 of all arrivals since 2015 have received asylum or some other status, and the number for countries such as Nigeria or Morocco is around 10% or lower.

So, to sum up, if Greece had obeyed its own laws and EU laws, the refugees would never have reached Germany, and most would have been turned back. Greece instead chose to ship the refugees to the Greek mainland — often chartering entire ocean liners to do just this:

Image result for ocean liner full of refugees pictures

Greek authorities then provided further transportation and escort to up to the Greece/Macedonian or Greek/Albanian border, where the refugees left EU territory. Some traveled through Bulgaria, which is an EU member state.

Bulgaria also violated its own laws and Dublin III regulations, by not detaining illegal immigrants at the border and requiring them to justify their illegal entry by filing for protection. Bulgaria and Macedonia and other countries also collaborated in the mass, open defiance of its own laws and (in Bulgaria’s case) EU laws by arranging for transportation of tens of thousands of people through its territory to the next country in the chain. Whether that next country was Slovenia or Hungary, those countries also violated their own law and Dublin III by facilitating the mass illegal transport of migrants through their territory without conducting asylum hearings (unless the person requested it). Then most of the refugees arrived in Austria. Austria also violated its own law and Dublin III by permitting the illegal entry of migrants and not requiring them to justify their presence by seeking protection.

This is not to single out Austria for criticism. As Robin Alexander commented in his study of the crisis, Die Getriebenen:

The Dublin System, which already had holes, now completely collapsed. From Greece through the Balkan states to Austria, a “waving-through culture” emerged. And why should a, Eastern European policeman stop someone from traveling through his country to another country [i.e., Germany] where his arrival will be celebrated?

Finally, the migrants arrived at the German border. Despite the fact that mass movements of migrants had been predicted in 2014, despite the fact that Frontex, the European border-enforcement agency, had collapsed, despite the fact that large numbers of refugees had been moving through Europe for months, and increasing numbers were arriving on Europe’s shores, the Federal Chancellor of Germany had still not made up her mind whether to let them in. As Alexander puts it: “Merkel and [Austrian Chancellor Werner Faymann] later justified the border opening as a nearly-spontaneous humanitarian decision.” Nearly spontaneous. Does that sound like a legal argument?

II. Merkel’s Decision: A Legal Drop in an Illegal Ocean

Against this backdrop, the issue of whether Merkel‘s decision was lawful is not very important. By the time the migrants reached Germany’s border, the rule of law in the EU had collapsed. EU countries were openly facilitating mass breaches of their own and EU law. The system was in crisis, and the crisis was, and had been, entirely foreseeable. Yet nobody — including Merkel — had taken any effective action to prevent it. Thus, anyone who wanted to portray the 2015 refugee crisis as a result of illegal actions by government officials (not necessarily Merkel) already had an irrefutable argument when the refugees reached the German border.

As I explained in my previous post, there is a legal argument that Merkel’s opening of the border was permissible under EU law. The “illegality hypothesis”, therefore, appears incorrect. But in terms of relative illegality, it’s like charging someone who committed millions in tax fraud with failing to use adequate postage on his fraudulent tax returns.

And, as I pointed out earlier, Merkel and other officials realized the absurdity of relying on EU law to justify their decision. An article in the English version of Die Zeit article puts it succinctly:

The German government, [Speaker Stefan] Seibert says in a tone that for him sounds almost threatening, “assumes that Hungary, as a part of the Western community of values, will meet its legal and humanitarian obligations just as Germany has.”

Prevailing law, European standards, humanitarian obligations — such are the terms being invoked by German politicians during these turbulent days. Because for Germany, prevailing law is rather useful.

Prevailing law holds that every asylum-seeker must be registered, provided for and sheltered in the EU member state where they first enter European Union territory. Germany, though, is situated in the middle of Europe, surrounded on all sides by EU member states. That means it is impossible for refugees to arrive in Germany without having first passed through another EU member state, unless they fall from the sky. Prevailing law also holds that those who have managed to make it to Germany must be sent back to the country where they first entered the EU. By definition, these are countries on the European periphery like Greece and Italy.

Were this law to still apply, there wouldn’t be any refugees in Hungary at all. They would all still be in Greece, properly registered, appropriately provided for and humanely sheltered. And truth be told, officials in Berlin are perfectly aware of that fact.

If Merkel had used EU law to justify her decision, this would have begged a few questions: “Please explain how EU law trumps the plain language of the German Constitution and Asylum Law.” Assuming she explained, more questions: “You mean German law has been trumped by EU laws which just completely collapsed? Why should Germany be obliged to follow laws which other countries are blatantly violating, with no enforcement, accountability, or consequences? Why did Germany, as the leading EU Member State, do nothing to prevent this breakdown? Why must Germany, alone among all EU countries, be responsible for the costs and risks of accommodating millions of uncontrolled migrants?”

Merkel is nobody’s fool. She realized there were no good answers to these questions. So she decided, instead of stepping into the trap, to describe the decision as a “nearly spontaneous” humanitarian reaction. A matter of the heart, not the head. But Merkel’s own response was, of course, one of the prime reasons the illegality myth got started in the first place. She declined to give a legal justification for her actions, which practically invites anyone to question the legality of her decision. Merkel’s defenders are now retroactively projecting an argument for the legality of Merkel’s decision nearly four years ago, but it’s not the one she herself gave.

So, to sum up:

  1. European leaders — including Angela Merkel — knowingly created an asylum system which put the primary burden for handling asylum claims on countries which they knew already had “serious shortcomings” in their asylum systems. They ignored all warnings about this.
  2. European leaders — including Angela Merkel — simply watched as massive numbers of migrants began heading for European territory in 2014 and 2015. They did nothing to improve Greece’s asylum capabilities. They did nothing to enhance the capacity of Frontex, the European border agency. They ignored warnings from their own security agencies
  3. European leaders — including Angela Merkel — watched as Greece knowingly violated its own laws and EU law by helping migrants move inland. They did nothing to enhance border security at other EU states. They even attacked Hungary for reinforcing its own border.
  4. European leaders — including Angela Merkel — did nothing as EU Member State after EU Member state actively broke the law by helping migrants move northeast. They did nothing as Dublin III, whose flaws they were well aware of, collapsed
  5. Angela Merkel herself personally encouraged more migrants to come by posing for selfies and issuing statements which were predictably interpreted as encouragement — things her security advisers had begged her not to do, since it would increase already-unmanageable migrant streams.
  6. Angela Merkel deliberately chose not to invoke EU law to justify her decision, instead portraying it as a “humanitarian gesture”, which is obviously not a legal argument. She did so for the very good reason that invoking EU asylum law — which had just collapsed in front of the world’s eyes — would have provoked skepticism, if not howls of derisive laughter.

Against this backdrop of incompetence, fecklessness, and illegality, is it really that important whether it is possible now to retroactively formulate an argument that it was legal under German law to let the refugees enter? The question, I suggest, answers itself.

What’s necessary now is not to quibble about a decision made four years ago which is irreversible. The agenda now must be to prevent a re-occurrence of what happened in 2015 — something Merkel herself admits (g) cannot be allowed to re-occur. But once again, Merkel and the EU have proven incapable of effective action. The only thing preventing a new collapse of law and order are flimsy, exploitative, inhumane agreements made by individual EU Member States with Turkey and Libya, which could break down at any moment. Four years have gone by since the crisis began, and almost no progress has been made toward a workable, humane, balanced EU migration policy. And Merkel must take her share of the blame for that. Again, she and EU leaders are failing to ensure that the law can meet real-world demands.

It is this state of affairs — the fact that EU migration policy is still incoherent and unworkable — that is the important issue going forward. When the next refugee crisis comes, and EU and German law collapse again, the illegality issue will come rushing back with full force. Lawyerly speculation about how an irreversible 4-year-old political decision might be justified by new arguments appears to me to be rather beside the point.

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