University of Helsinki: Dissatisfaction with asylum policy leads to shifting the responsibility onto law

Does the asylum system of the European Union correspond to today’s realities? According to oft-heard criticism in recent years, the EU asylum system and related treaties have become outdated, and they should be updated to coincide with today’s circumstances and requirements.

Postdoctoral researcher Milka Sormunen, who specialises in constitutional law and European law, noted the phenomenon when Finnish President Sauli Niinistö discussed the applicability of old agreements to contemporary conditions in his keynote speech on foreign policy in August 2021. Niinistö questioned the EU’s ability to adhere to its ambitious principles under pressure from migration. Sormunen noticed that similar criticism occurs in other EU countries as well, and wanted to investigate in more detail the phenomenon she calls ‘outdating criticism’.

“My starting point was to investigate what is meant by outdating. I noticed that outdating criticism is often quite vague, and its precise object, or the conclusions to be drawn from it, are rarely defined,” Sormunen says.

Tools are available, but no will to use them
According to Milka Sormunen, there are definitely deficiencies in the EU asylum system. The one that is the most clearly and acutely in need of reform is the Dublin Regulation, according to which applications for asylum must be processed in the country in which they were initially submitted. As a result, the EU member states on the external borders of the union and the most popular destination countries bear a much larger burden than other countries.

While there are no legal obstacles to reforming the Dublin mechanism, there is an abundance of political obstacles. The European Commission has presented concrete proposals for improvement, with the proposal for a new solidarity mechanism in 2020 as perhaps the most important, but the political will to rectify the deficiencies is absent. For example, Poland and Hungary have opposed proposals for increasingly equal responsibility sharing.

“I’m not very optimistic about reaching any groundbreaking reforms in terms of responsibility sharing,” Sormunen says.

The EU member states are fairly unanimous on the need to reform the asylum system, but their expectations as to the direction in which it should be developed vary greatly. In its asylum policy, the EU has sought to ensure that all decisions are unanimous, which often results in watered-down compromises.

“The method of qualified majority voting is avoided in decisions on the topic, as it is so politically sensitive. The potential risk with qualified majority decisions is that not all member states wish to commit to them.”

The UN Refugee Convention has withstood the test of time well
The EU’s asylum legislation is based on the UN Convention relating to the Status of Refugees and on human rights conventions. These treaties largely determine the EU’s leeway in the matter. They are also intertwined, and practices cannot be substantially changed by amending a single agreement. For example, states cannot stop abiding by the principle of non-refoulement, as it is based on so many treaties.

The UN Refugee Convention, adopted in 1951, is old enough to get a pension. However, the convention has, according to Sormunen, aged with dignity and is fairly fit for purpose in today’s circumstances. Allegations that it is an ill match for large-scale refugee migration are not based on history.

“The convention was drawn up to respond to the refugee situation following the Second World War, when there were millions of refugees in Europe. The convention was specifically designed from a European perspective and with large-scale refugee movements in mind.”

Of course, there are deficiencies in the Refugee Convention as well. For example, the concept of persecution central to the treaty is quite poorly applicable to migration caused by climate change. Updates to the Refugee Convention are in any case very unlikely; even EU countries are unable to reach a consensus on asylum policy, and coming to an agreement globally in the current political climate is even more difficult by several orders of magnitude.

Focus readjusted to controlling access to the system
According to Sormunen, the idea that political difficulties within the EU could be solved by amending legislation is absurd, since legislation cannot be reformed without political agreement.

“In the discussion, criticism is often aimed at legislation or treaties pertaining to asylum, ignoring the political element, even though asylum policy is explicitly political.”

With the EU stumbling internally due to a lack of political consensus, the focus of asylum policy has shifted to controlling migration. In recent years, the union has attempted to hinder access to the asylum system through a range of means. Upon arriving at the EU border, asylum seekers are granted certain rights, whose activation the EU has attempted to avoid by making it increasingly difficult to gain access to the asylum procedure.

This is a policy which the EU has justified externally by, among other things, presenting refugees as a security threat – as an exception that justifies exceptional measures.

In practice, the policy has been implemented not only by tightening up border policy, but also by entering into readmission agreements and informal readmission arrangements with non-EU countries. For instance, an arrangement has been concluded with Turkey where Turkey commits, for compensation, to prevent those seeking protection from travelling to Europe.

“With the EU’s commitment in its own treaties to comply with the provisions of the Refugee Convention and human rights treaties, I find it quite problematic if the practice is something else entirely,” Sormunen notes.

This approach is questionable not only in principle; by adopting this practice, the EU has inadvertently created a tool that can be used by non-EU countries to put pressure on the union.

“When the EU starts trading and presents migration as a threat, it exposes its own vulnerability. Consequently, Turkey and other countries outside the union know how to gain the upper hand.”

Russia’s war of aggression in Ukraine has brought new trends to asylum policy. This time, EU countries quickly found common ground, and the temporary protection directive was activated for Ukrainians in just over a week. In practice, the directive means that Ukrainians have much easier access to protection than other asylum seekers.

“I think it’s hugely positive that the political will was there. For those fleeing from Ukraine, easing the asylum process is a purely good thing. However, if you analyse these matters in a broader context, it’s striking that there are very different concurrent trends in asylum policy.”