Who is the New European Refugee? Nadine El-Enany

Outline of the paper Asks who is and who isn’t protected by European refugee law – who is the new European refugee? Raises concerns about the negative protection implications of the EU’s restrictive migration policy on vulnerable refugees outside Europe. Examines the move towards an external protection regime.

The (heated) externalisation debate Burden-shifting, (e.g. UK’s ‘New Vision for Refugees’, 2003). Protection concerns, (e.g. Human Rights Watch report on Libya, 2006). Justification for lowering internal protection, (e.g. Australian government). So, this paper focuses solely on complementary protection measures, not those designed to substitute internal protection.

Analytical foundations: My concerns Those asylum seekers who manage to access asylum procedures in the European Union are generally well protected and are not the most vulnerable refugees. The asylum seekers of more concern are those who are unable to access EU territory in order to claim asylum due to the EU’s restrictive migration policy. Therefore, we must be willing to consider positive attempts to counter negative effects of restrictive migration controls on these most vulnerable refugees.

The problem of broader protection, but limited access Internally, protection for asylum seekers has broadened, e.g. Qualifications Directive’s wide definition of a ‘refugee’, (e.g. non- state actors, sexual orientation, gender persecution grounds). Simultaneously, EU migration policy restricts access to the EU for all migrants, including asylum seekers. E.g. ‘safe country’ concept in Procedures Directive, visa requirements, carrier sanctions. Limited legal routes into the EU mean the new European refugee must be economically mobile, entering illegally, expensively, through smugglers – the most vulnerable refugees are trapped outside Europe.

Effects of limited access Attempts to reduce the number of asylum seekers are real (e.g. stated intention of the UK Home Office, 2006) and have been successful, (e.g. UK, 2007 asylum applications at a 15 year low). European Commission admission that low numbers do not mean less people in need of protection, acknowledging that EU and Member State restrictive migration measures are preventing genuine refugees from accessing protection in Europe (COM(2004) 410 final). Commission proposes external protection measures to complement the EU internal protection regime (COM(2004) 410 final).

External protection regime What is it? -Complementary measures designed to counter the negative effects on access to protection caused by restrictive migration policy, e.g. Regional Protection Programmes, Protected Entry Procedures, EU-wide resettlement scheme. Why? -Most vulnerable refugees are trapped outside Europe – 6.5 million of the World’s 8.7 million refugees live in developing countries (UNHCR figures, 2005). -Member States are limited in their ability to domestically alleviate the problem of access, e.g. EU-wide visa requirements, border policing. -It is not politically feasible and thus ineffective to argue for the removal of measures restricting access of migrants to the EU, (e.g. Commission approach in Green Paper on the future of the CEAS (COM(2007) 301). -EU as an international organisation. -Involvement of the UNHCR.

Examples of external protection measures Regional Protection Programmes (RPPs) -Protection for refugees ‘as quickly as possible and as closely as possible’ (COM(2005) 388 final). -Close cooperation and increase of ‘protection capacity’. -Pilot schemes in Tanzania and The Western Newly Independent States EU-wide resettlement scheme -EU takes its share of refugees -Selection of those genuinely in need -Reduced need for smugglers Protected Entry Procedures (PEPs) -Reduced need for smugglers

Problems with the Commission’s proposals Too early to evaluate success of the external protection scheme in general, however: -Funding is limited, e.g. only €2 million for RPPs. -Possibility of “cherry-picking” in resettlement. -Member States resistance towards PEPs led the Commission to consider it an ‘emergency strand’ rather than standard policy. -Danger of treating external protection as a substitute regime and thus reducing internal protection for spontaneous arrivals, (e.g. UNHCR warning to EU following Commission’s 2004 proposals). -Uncertain whether complementary measures such as RPPs, PEPs and resettlement can ever fully counter effects of EU restrictive migration policy on access to protection.

Conclusions The EU’s restrictive measures mean that only those with the ability to circumvent them can access protection in Europe - the ‘European refugee’ must be economically mobile and willing to take risks - these are not the most vulnerable refugees. European refugee law has not been presented and accepted on the basis of such inequity. While restrictive measures remain in place, external protection measures are important pragmatic solutions for vulnerable refugees unable to access protection in Europe. The hope is that for RPPs, funding will increase, resettlement will progress in an earnest and equitable manner and PEPs will be perceived as fair and necessary by Member States.