Thorbjørn Jagland :
As the refugee crisis continues, Europe’s governments want to ensure that their asylum rules are perceived as fair and not open to abuse. This is understandable. Indeed, it is in everyone’s interests for citizen’s to have confidence in their country’s immigration system. This is essential for social cohesion, too.
The danger, however, is that – with government’s feeling increasing pressure to “do something” – measured responses give way to kneejerk reactions. Across the continent steps to tighten domestic asylum rules are now coming thick and fast. New powers for police to confiscate refugees’ assets at the border, for example. Rules that will make it harder for refugees to reunite with their families. Reforms to make it easier for governments to expel them in the future. There will be more to come.
With a raft of new legislation coming down the line, it’s time to pause. What are we really trying to achieve? If the focus is squarely on weakening Europe’s so-called “pull factor”, what is being done about integration? The truth is that many of these newcomers are already here – and here to stay. Do we want them to live alongside our citizens, able to work and make a contribution? If we do – and we should – we must be vigilant against short-sighted actions which will undermine their long-term success.
What is more, any state looking to shore up public support for its asylum system should now be highly mindful of international law. Politically popular measures today will only lead to judicial headaches tomorrow if they contravene the European Convention on Human Rights. The sight of states being called before the European Court of Human Rights will do little to boost people’s faith in their government’s ability to get to grips with this issue. On the contrary, such an outcome would be a gift to populists and, for mainstream politicians, an own goal.
Far better that we ensure that any asylum reforms are aligned with the Convention and guided by the case law of the Court. Take, for example, the period of time refugees must wait before applying for their spouses and children to join them.
Article 8 of the Convention guarantees the right to family life and the Strasbourg Court has been clear on the need to consider the circumstances of individual cases: it is important to look at a family’s specific situation against the state’s right to control immigration within its borders. We should therefore be wary of enforcing blanket, indiscriminate waiting times, which are applied across the board.
The Court has also placed a special emphasis on the rights of children. In Tanda-Muzinga vs France for example, the three-and-a-half-year wait to reunite two parents with their children was found to be excessive. Such judgments should act as a guide.
The Convention is also an invaluable tool for governments seeking to foster trust between newcomers and their citizens. This challenge now needs our full attention. Written in the aftermath of the Second World War and signed by 47 European states, the Convention contains the fundamental liberties that all in Europe should enjoy.
For individuals arriving in Europe this means, for example, no pushbacks or collective expulsions at the border; no physical restraint or inappropriate and unnecessary body searches. If a state must detain someone, it must be an exceptional measure and the facilities must be clean, healthy and safe.
Asylum applications must be decided on a case-by-case basis. All states have an obligation to prevent refoulement. You cannot lawfully expel someone who faces potential death, torture or ill-treatment if they return to their home country. Nor can you send them to a different country if – from there – there is a reasonable danger that they will be sent back into harm’s way.
In turn, all those granted the right to stay must respect common European standards, just as our own citizens must. After the widespread attacks on women at Cologne central station on New Year’s Eve, there has been some talk of a “clash of cultures”, in this instance with regard to “North African attitudes to women”. First, it’s important to underline that we do not yet know exactly what happened in Cologne.
We must avoid sweeping generalisations which insult and stigmatise the many migrants who were just as appalled by these assaults as anyone else. And, whatever transpires, the whole point of human rights – including the right of women to live free from violence – is that they are universal. All must uphold them: no ifs, no buts and no cultural relativism. Governments must enforce these standards without discrimination or apology, as the basis of public order. This is essential for heading off vigilantism and diffusing tensions and mistrust.
For 65 years, the European Convention on Human Rights has helped keep the peace between nations. Today these core rights and freedoms can be a common ground within our societies too. As the refugee crisis continues, many in Europe will continue calling for action. Our governments should respond with leadership. This means reasoned responses which promote inclusion, are grounded in law and, as a result, stand the test of time.
(Thorbjørn Jagland is the Secretary General of the Council of Europe).
