‘Will of the people’ above the law

‘Low point for refugee protection’

Even before the EU summit last Thursday, German Chancellor Olaf Scholz was pushing for implementation of the EU Pact on Migration and Asylum, adopted in the spring, to be significantly accelerated. Among other reforms, the pact provides for refugees to undergo screening directly at the EU's external borders. Anyone fleeing from countries where the EU has already established a low asylum recognition rate (20 per cent or less) will have their asylum claim processed in a fast-track procedure at the external border and may not leave a border facility set up specifically for this purpose. The legal assistance to asylum-seekers required for a fair procedure is de facto impossible under these conditions. The arrangement further reduces the chance of claims being recognised. Rejected asylum-seekers will then be deported directly from such border camps. The general agreement on the reform package marks, say critics, “an historic low point for refugee protection in Europe”.[1] The German government clearly favours the harsher measures in the hope that they will significantly reduce the numbers of refugees and irregular migrants arriving in Germany. And Berlin is particularly keen on the new arrangements because Germany does not have an external EU border. The main burden of setting up new EU border facilities lies with countries such as Greece and Italy.

The Albania model

For its part, Italy has been moving quickly ahead with a different model, involving the immediate offshoring of asylum procedures to Albania. Male refugees whose boats are picked up by the Italian coastguard in the Mediterranean are detained and taken to a processing centre in the Albanian harbour town of Shëngjin. A second facility has set up in nearby Gjadër. Claims for asylum in Italy will then be heard in another country. Those who are granted asylum will be allowed to travel to Italy; those who are rejected will be deported directly from Albania. Rome intends to process up to 36,000 refugees per year in this way.[2] Here too, the legal assistance needed for a fair hearing will not be available. Prime Minister Giorgia Meloni promoted her model at a special meeting on Thursday, ahead of the EU summit. The meeting was attended by the heads of state and government from ten other EU countries as well as European Commission President Ursula von der Leyen.[3] Von der Leyen had previously announced that she would closely monitor the Albania model and assess its potential as a future EU-wide solution. Its adoption is seen as conceivable.[4]

The Uganda model

Reports from the special meeting in Brussels indicate that the Commission President presented her plan to set up repatriation centres outside the EU. These ‘return hubs’ would process asylum-seekers whose claims for recognition have been rejected but whose removal from the EU to their countries of origin or to supposedly safe third countries is not immediately possible. The idea is to get them out of the respective EU country as quickly as possible by offshoring the process. They could, under von der Leyen's plans, be transferred to the return hubs, essentially deportation camps, in third countries.[5] The most concrete initiative to date has come from the Netherlands, whose far-right government recently announced “the strictest asylum policy ever”.[6] Refugees are to be forcibly housed in a few large camps and only provided with the bare essentials. The Hague is also demanding an opt-out from the EU’s common asylum policy so it will be entitled to completely seal off the country's borders. The Dutch government is currently in talks with Uganda over the construction of a first such camp.[7] It would then be up to the government in Kampala to decide where the refugees would be deported from there.

Eroding the Refugee Convention

In the meantime, the first EU governments are pushing for the right of asylum to be scrapped altogether. Some have already begun to do so. Finland, which completely closed its border with Russia in April, no longer accepts asylum applications from there and has been explicitly authorised by the Finnish parliament to send back any asylum-seekers who nevertheless manage to cross the border. This practice is not compatible with either international or EU law on asylum and human rights, yet it is tolerated by Brussels without any serious pushback. Poland wants to suspend all rights of asylum for all those entering or desperately attempting to enter from Belarus. The reason given is that Belarus is supposedly waging a ‘hybrid war’ by allowing refugees to make their way westwards - a threat that Poland must, Warsaw claims, counter. Poland's Deputy Interior Minister Maciej Duszczyk is in favour of enshrining “such a solution in European law”.[8] Denmark wants to go one step further. At Thursday’s EU summit Danish Prime Minister Mette Frederiksen argued in favour of repealing the Geneva Refugee Convention, stating that, “The rules established after the Second World War no longer work in today's world.”[9]

Setback for expulsion plans

The EU's deportation plans suffered a setback in Rome at the end of last week. It came shortly after an Italian naval vessel had brought the first sixteen refugees to the facility in Albania. Four of them had to be conveyed to Italy quickly: two were minors and two needed medical attention. A court in Rome then ruled that the remaining twelve are also entitled to a regular screening procedure inside Italy to assess their asylum claims. They had to be removed from Albania immediately. This ruling is based on a decision by the European Court of Justice (ECJ) in Luxembourg, made on 4 October 2024. The ECJ reaffirms that only those states can be classified as ‘safe’ for refugees if the ‘safe’ status applies to their entire national territory.[10] The Italian authorities were legally obliged to act without delay and bring the twelve refugees to Italy at the weekend.

Rejecting the rule of law

The Italian government is not, however, willing to accept any judicial obstacles. It has announced that it will appeal against the court judgement. Justice Minister Carlo Nordio has declared that the judiciary has no right to declare a government policy to be unlawful if that policy “expresses the will of the people”.[11] Prime Minister Meloni has now scheduled an emergency meeting of the Italian cabinet for today, Monday, with the intention of adopting a decree under which the judiciary is not authorised to review the executive’s classification of third countries as safe countries of origin. This step means that Rome would be breaking with a fundamental principle of the rule of law.

[1] GEAS-Reform im EU-Parlament: Historischer Tiefpunkt für den Flüchtlingsschutz in Europa. proasyl.de 10.04.2024. See also: „Gelebte Mitmenschlichkeit“.

[2] See also: “Die europäische Familie“.

[3] Apart from Italy, the meeting was attended by the Netrherlands, Denmark, Polend, Czech Republic, Slovakia, Hungary, Austria, Greece, Cyprusn, Malta and EU Commission President Ursula von der Leyen.

[4], [5] Jan Diesteldorf, Josef Kelnberger: Die Wende zur Unwillkommenskultur. Süddeutsche Zeitung 18.10.2024.

[6] Britta Behrendt: „Strengstes Asylregime aller Zeiten“. zdf.de 13.09.2024.

[7] Niederlande wollen abgewiesene Asylbewerber nach Uganda schicken. handelsblatt.com 16.10.2024.

[8] Stefan Locke: Tusk beharrt auf Aussetzung des Asylrechts. Frankfurter Allgemeine Zeitung 16.10.2024.

[9] Thomas Gutschker: Die Hardliner geben den Ton an. Frankfurter Allgemeine Zeitung 19.10.2024.

[10] Marc Beise: Gericht untersagt Flüchtlingslager in Albanien. sueddeutsche.de 19.10.2024.

[11] Regierung Meloni streitet mit der Justiz. Frankfurter Allgemeine Zeitung 21.10.2024.