This article was published 11.08.2021 on the website of the Friedrich Ebert Foundation, on the Thematic portal Flight, migration, integration published.
Since 2015, talk of the supposed refugee crisis has been omnipresent. After Information from the UNHCR over 80 million people worldwide were displaced at the end of 2020, but most of them do not make it to Europe and remain in the global South. In fact, the crisis is the lack of access to protection via regulated, safe routes to Europe. In the first half of 2021 alone, more than 110 people died in the Mediterranean on their way to the EU. In addition to improving the political, cultural and economic participation of people seeking protection in countries of first refuge outside Europe, lasting, sustainable and solidarity-based solutions and instruments are needed in Europe to meet the challenge of refugee and migration movements. The expansion of humanitarian admission programmes as safe entry alternatives and the strengthening of the role of cities and municipalities in the admission of refugees play an important role here.
According to the Geneva Refugee Convention of 1951 In principle, the state in whose territory or at whose border a person seeking protection is located. How this state granting protection is to be reached safely, however, is not regulated and remains the subject of debate to this day. The crucial question of refugee law. The progressive Externalisation of border and migration controln also contributes to the fact that safe access to protection in the EU is virtually impossible. As there are hardly any regular entry options for people seeking protection, many leave their fate to the international smuggling trade. When fleeing they risk their lives and run the risk of falling victim to the international Human traffickings to become a refugee. The possibility of obtaining protection presupposes that a person makes it into the territory or at least to the border of the EU. At the same time, access to this territory is systematically made more difficult. This Asylum paradox not only leads to a serious human rights problem. It also poses challenges for the host countries, as they are unable to adequately prepare for the arrival of those seeking protection, as would be possible in the case of regulated entry.
One possible response to the asylum paradox would be the expansion of safe access routes, such as the allocation of Humanitarian visasand Resettlement and humanitarian admission programmes. Humanitarian visas can enable safe entry after submitting an application to an embassy abroad so that an application for asylum can be made in the destination country. While EU Member States may grant such visas in individual cases for various humanitarian reasonsthe European Court of Justice in the case of X and X v Belgium decided in March 2017 that EU law (specifically the EU Treaty onVisa Code) there is no basis for issuing such an "asylum visa". Although the Member States may provide for such procedures under national law, they are not obliged to do so under European law. Such a genuine "Embassy procedures" existed in Switzerland until 2012but it was discontinued. In contrast to resettlement and humanitarian admission, entry via an individual humanitarian visa does not depend on membership of a particular group and is not restricted by quotas. Nevertheless, such quota procedures are also important entry alternatives for people seeking protection.
The Majority of people seeking protection is located in the regions of origin. The UNHCR resettlement procedureresettlement, i.e. the resettlement of people seeking protection who cannot remain permanently in a country of first refuge, is therefore particularly relevant for many people seeking protection. Germany has participated in the UNHCR's resettlement programme with an annual admission quota since 2012 and in the EU-wide resettlement programme. Since 2014, the Residence Act (AufenthG) has provided a separate legal basis for resettlement (Section 23 (4) AufenthG). The details of the specific admission are determined by the respective Recording arrangement of the Federal Ministry of the Interior.
Due to the Covid-19 pandemic, the resettlement programme at national and international level was Temporarily suspended. But now the EU has spoken out in favour of a stronger resumption of the programmes.
Finally, at national level there are various Temporary humanitarian admission programmes for certain groups of people and so-called "Private sponsorship programmeswhere private sponsors finance the entry of individual asylum seekers. Well-known examples are the temporary humanitarian admission programmeswhich the German state initiated from 2013 to 2015 for people who fled the conflict in Syria (on the basis of Section 23 (2) AufenthG). At the same time, almost all federal states have adopted Section 23 (1) AufenthG one Admission made possible on the basis of private financial declarations of commitment. Finally, the most recent example of humanitarian reception in Germany is the "New start in the team" (NesT), a hybrid of resettlement and privately financed admission, which relies on the voluntary willingness of municipalities and their populations to accept refugees.
Other EU member states also have Initiativesto enable safe access to the EU via humanitarian admission programmes. In Italy, for example, the so-called "humanitarian corridors". Around 2,500 people from various regions (including Syria, Ethiopia and Morocco) have been directly admitted to Italian communities through these programmes. The admissions are based on agreements between religious communities (Protestant churches and the Catholic community of Sant'Egidio) as sponsors and the Italian Ministry of Foreign Affairs and Interior. The people are travelling with the help of the UNHCR via a humanitarian visa in accordance with Article 25 of the EU Visa Code.
Finally, family reunification is also an important safe access route for many people seeking protection. Even if family reunification is primarily aimed at protecting the family unit, many relatives of asylum seekers living here are themselves in need of protection. Restrictions on family reunification for beneficiaries of subsidiary protection thus not only perpetuate a Separation of the families concerned and make participation and integration more difficultbut also exacerbate the problem of a lack of secure access routes.
The various humanitarian admission options in Germany differ not only in terms of their purpose and legal basis. They also lead to different rights for those affected after entering the country. While people who enter Germany via the resettlement programme, for example, receive a residence permit that allows them to be joined by their nuclear family, people who have entered via the privately funded state admission programmes do not have this right. In addition, there was a long legal dispute over the Temporal validity of the private financial commitmentswhich was finally brought to an end by an amendment to the law that Commitment limited to five years. This Inequality in legal status of people, some of whom have similar refugee backgrounds and would have been granted the same status in the national asylum procedure, shows that the creation of safe entry options also depends on the specific legal consequences for those affected.
When it comes to enabling those seeking protection to enter the EU safely, there are a number of legal alternatives. But how should we deal with all those who have somehow made it into EU territory but still do not receive adequate protection? This refers in particular to those seeking protection, who are often detained for months in inhumane conditions in the so-called EU hotspots have to live on the Greek islands. This situation also results from the fact that it has not been possible to develop a common European asylum procedure that meets legal standards. On the one hand, as explained in detail above, there is often no access to asylum procedures and, on the other hand, there is no reliable division of responsibility between the member states for arriving asylum seekers. In response to the sharp rise in arrivals in the EU's external border states, a majority of member states agreed on a relocation programme in the European Council in 2015, i.e. the relocation of asylum seekers from the EU countries of first arrival to other member states. The programme was discontinued in 2017, partly due to pressure from the Visegrád countries, and has relocated far fewer people seeking protection than originally planned. In the meantime, the European Court of Justice has ruled that the refusal of Hungary, Poland and the Czech Republic to take part in the relocation programme is justified, has violated EU lawbut neither the Council nor the Commission have since put an EU-wide relocation programme back on the agenda.
This is another reason why the need for humanitarian admission is increasing in order to finally bring people stuck at the EU's external borders, including particularly vulnerable people such as unaccompanied children and pregnant women, to safety. Since April 2020, Germany has, on the basis of Section 23 (2) of the Residence Act more than 2,700 people from the initial reception and registration centres (EU hotspots) on the Greek islands. In addition, individual federal states had also declared their willingness to accept asylum seekers from Greece on the basis of Section 23 (1) of the Residence Act. For this purpose, for example Berlin and Thuringia The Federal Ministry of the Interior (BMI) has been asked to give its consent in each case. The background to this is that the possibility of this state recording requires the "preservation of federal uniformity". Among other things controversialwhether the BMI will grant its approval for this. required at all is. Finally, the BMI itself argues that European law (specifically the Dublin IV Regulation) takes precedence in such a case. So while there was a heated debate in 2020 as to whether the federal government, the federal states or even the EU was responsible for humanitarian admission, the debate came to a head. Situation in the camps on the Greek islands continues to grow in light of the Covid-19 pandemic. Accordingly loud are Receivablesto at least continue the federal admission programme.
Finally, humanitarian admission is also possible in cases of civilian Sea rescue relevant, as Italy in particular, under the then Interior Minister Salvini, had closed its harbours to civilian sea rescue ships and thus prevented people rescued from distress at sea from exercising their right to initiate an asylum procedure. In 2019, the dispute between civilian sea rescue organisations and Interior Minister Salvini came to a head, culminating in the Arrest of Sea Watch captain Carola Racketewhich had defied the docking ban and arrived in the port of Lampedusa with 40 rescued people. Under pressure from Italian and German civil society, a smaller group of EU member states subsequently agreed on a reception mechanism for people rescued from distress at sea in the central Mediterranean. The German Interior Minister Horst Seehofer's concession was also due to growing pressure from the "Cities of Safe Harbours" alliance, which had continuously campaigned for Germany to step up its commitment and made its own willingness to take in refugees clear. The resulting Malta mechanism provided for the first time since the failed relocation programme from 2015 to 2017 for the rapid distribution of protection seekers to other EU member states without carrying out a preliminary examination of the application for protection.
Not only in Germany, but throughout Europe Hundreds of cities and municipalities in favour of refugee protection. From the very beginning, it was the cities and municipalities where the people actually arrived, were housed and cared for. While capacities still had to be built up at the beginning, many cities have now acquired detailed expertise and expanded their accommodation and administrative capacities. These Cities and municipalities show a great willingness to accept and often declare themselves "safe harbours". In the meantime, there is not only a German city alliance, but also a Europe-wide "safe harbours" alliance. Although the legal options for municipal reception are still limited, cities are exerting political influence and are becoming increasingly visible and self-confident as actors in migration and refugee policy. This applies at both national and European level. Cities are not only offering reception centres, they are also showing solidarity with each other. Amsterdam, for example, declared that the city would take in people seeking protection from Athens at a time when the EU-wide relocation programme was coming under increasing pressure. These municipal offers provide nation states with an important opportunity to overcome the lack of solidarity-based responsibility sharing for protection seekers within the EU. Combined with a Matching mechanism between municipalities and people seeking protection, as well as a participation and investment initiative at local level, they also offer an opportunity to show that Europe can find constructive solutions that are in line with European fundamental rights.
In order to offer those seeking protection a safe entry alternative, safe access routes need to be expanded - for example via humanitarian visas, resettlement procedures, humanitarian admission programmes and family reunification. Safe access to protection also means that those affected can effectively exercise their rights. Humanitarian admission therefore also serves to protect people who have (almost) made it into the EU but are not yet truly safe because they are unable to exercise their rights. Cities and municipalities play a key role in the reception of refugees and can change the image of "Fortress Europe" with their "safe harbours". Safe access routes are an important addition and not a substitute for individual asylum applications after arrival in the territory. This is because they do not affect the principle of non-refoulement, i.e. the principle of non-refoulement to a country where there is a risk of human rights violations. The principle of non-refoulement and the associated right to access to a fair asylum procedure to examine the individual's right to protection are enshrined in international and European law and must always be guaranteed.
All this leads to the following recommendations for the further development of national and European legislation:
Pauline Endres de Oliveira
is doing her doctorate at Justus Liebig University on the legal aspects of secure access routes to the EU and is working in a Research project on the Global Compact on Migration. She teaches refugee law at the Humboldt University of Berlin (Refugee Law Clinic) and the University of London. She is a member of Amnesty International's expert commission on asylum and is on the Supervisory Board of the human rights organisation JUMEN.
Dr Malisa Zobel
is a political scientist and head of the Municipal Integration and Development Initiative (MIDI) of the Humboldt-Viadrina Governance Platform. She is involved in the "From the Sea to the City" network and coordinates the project "European Refugee Integration as Municipal Development".