Signal Berlaymont: Is European migration policy finally about to change?

Is something finally changing in EU migration policy? 

The answer looks like it might be yes. Ahead of today’s EU Summit, European Commission President Ursula von der Leyen came out in support of the EU “exploring” offshore migrant processing hubs.

At least half of EU member states had urged her to do this. A Commission spokesperson added “this is about creating so-called return hubs in third countries with whom the European Union would have agreements, and for migrants whose right to stay in the EU has been rejected while they’re waiting to be returned to the country that they came from.” 

Interestingly, the Commission considered all this to be illegal back in 2018. This suggests the Commission interprets EU law according to the political needs of the moment. The Commission president adds that “only around 20 per cent of third-country [non-EU] nationals ordered to leave have actually returned.”

In any case, von der Leyen’s suggested policy differs from the UK’s Rwanda plan, which would have sent people to Rwanda who had not yet had their cases processed.

Why did it take so long?   

We might ask why it took so long to get here. Anyone looking at the massive challenge of dealing with rejected asylum seekers would have considered the policy Australia has now implemented for about two decades.

There, people who entered the country illegally retain the right to apply for asylum, but they are transferred to a territory outside of Australia, such as Nauru. 

There, they can still apply for asylum, but if they're successful this will be outside of Australian territory. Cambodia has agreed to shelter some asylum seekers whose asylum claims in Australia are successful.

In that sense, Australia’s model also differs from Italy’s brand-new policy.

Meloni's government will now transfer people who have entered illegally, and come from countries with a low rate of asylum approval, to processing centres in Albania. 

If these people receive a yes to their asylum request, they will be able to come back to Italy, and therefore the Schengen area. 

Sceptics pointed out that the Albanian centres may be quickly overcrowded with people denied asylum. Whether this is the case remains to be seen.

At least for Australia, in the end, it wasn't necessary to transfer large numbers of people to offshore processing centres. 

The prospect in itself was enough to deter migrants from risking their lives by getting smuggled into the country illegally. 

As a result, over two decades, almost no one drowned in Australian waters trying to enter the country illegally. 

This in sharp contrast to the Mediterranean, where 30,000 people drowned over the last ten years while trying to illegally enter the European Union.

It should be stressed Australia has still welcomed asylum seekers, but legally, after proper vetting. In itself, this system is unrelated to how many asylum seekers or legal migrants one wants to welcome. If a democratic majority chose to welcome a generous number of migrants, the system offers a way for the country to make sure that the appropriate number of people would actually enter.

Of course, people who enter legally can still overstay their visa in Australia. The country also faces a debate on whether it has welcomed too many people legally. Viewed along with the EU's challenges, these are literally first world problems. Europe’s population is increasingly growing tired of its chaotic migration system, as election results across the continent show.

Tusk fires a shot across the bow

A remarkable event in the run-up to the Summit was likewise Polish Prime Minister Donald Tusk announcing a new “migration strategy”, which includes “the temporary suspension of the right to asylum on our territory.” He explained: “I will demand recognition of this decision in Europe because we know very well how Lukashenko, Putin, people smugglers use this right to asylum contrary to the essence of that right.”

Then, as Polish MP Michał Woś, a member of the opposition PiS, pointed out, Tusk’s government is “preparing to open a large number of migration centres in Poland to cope with the existing and expected migrants.”

Migration policy is rife with all manners of reasonably hypocritical contradictions. For example, there is the Geneva Convention, to which every EU country has signed up, and which binds them to welcome every asylum seeker that is managing to apply for asylum on their territory. According to the UN, there currently are at least 100 million refugees in the world.

There is no democratic will in Europe to welcome all of these people, a number which does not even include irregular migrants who have left their home countries because of economic mismanagement and corruption.

Instead of simply adapting the rules, and setting a maximum number of asylum spots, European governments instead make it very difficult for people to apply for asylum. One example is Belgium, which deliberately complicates things by requesting that people can not apply for asylum from outside Belgium. If they are on Belgian territory, they can only do so at one specific, overcrowded office.

International treaties 

Even if European governments did agree to change international treaties, that may not be enough. Whenever a European country tries to implement different asylum policies, as the UK tried with its Rwanda model, judges often reinterpret human rights instruments in a very controversial manner. 

This is at least why Marc Bossuyt, a past president of the Belgian Constitutional Court and Belgian Commissioner General for Refugees, is also a long-standing critic of the Strasbourg-based European Court of Human Rights, which helped block the UK’s Rwanda plan.

According to Bossuyt, Belgium’s most reputed expert in international asylum law, the asylum seekers the UK planned to send there “have no reason to fear persecution in Rwanda”. He added that “in the European Convention on Human Rights, there is not even a provision on asylum” in the first place.

Maybe Italy will be more successful with its Albania arrangement. Albania is a signatory to the European Convention of Human Rights, unlike Rwanda. 

Then again, the Albania plan may fail, given it still grants people entering illegally the chance to receive asylum on the territory they tried to enter, unlike what the UK’s Rwanda plan or Australia’s policy.

One development which has received little attention is how Robert Jenrick, one of the two contenders to become the UK's next Conservative leader, is calling for the UK to leave the European Convention of Human Rights.

Even proponents of the European Convention of Human Rights should admit that it is bizarre that Britain, the cradle and bastion of liberal democracy, would need to listen to a court with judges from Turkey, Azerbaijan, and Armenia, all known for corrruption.  

It looks like Jenrick wants to achieve that by writing it into his party’s election manifesto. This means the UK could leave in a few years time, seeing as the Conservatives are catching up in the polls with the Labour party, after Sir Keir Starmer's unlucky first few months in power.

Strasbourg's judges had better take note.