1. Following Hervey, in what way does Europe’s Human Rights court struggle to implement its laws?
2. How did the EU structure the issue of Human Security and what are the challenges it continues to face?
3. How Effective are EU and National Policies regarding asylum and refugees?
4. What has the European Convention on Human Rights done for Europe?
5. Is the argument of “disintegration” compelling? Which of Webber’s solutions is applicable and in your opinion, what issue (economic, immigration, security etc.), would lead the way toward the disintegration of the European Union.
Forced Migration + EU Human Rights Court Struggles
Prof Maslanik Spring 2021
Effectiveness of National and EU Policies in Forced Migration
Effectiveness is overall rather limited.
i.e., we should not over estimate their capabilities.
Namely, push factors are typically beyond the capabilities of policy makers.
Reactive Measures > Proactive Measures
New Strategy should be implemented to help meet these challenges.
Well directed aid, fair trade, managing debt burdens and strategically organized reintegration programs should be at the core of the regimes recalibration.
Little evidence to suggest policy has the largest impact.
Human Rights Court and Outcomes in the EU
Most “sophisticated” though failing to meet up to its promises.
10,000 judgements not put into effect!
Article 46.4 European Convention on Human Rights Can Send Cases Back to the Court
Means, human rights abuses have carried on for years: Separating HIV + Prisoners in Greece, Police Brutality in Bulgaria, Improper investigation of prisoner deaths in Romania.
Igor Mammadov opposition leader in Azerbaijan remains in prison 3 years later.
EU Council Members found guilty of violating human rights are instructed to do two things: Compensate those who won the case & and implement new national legislation to avoid a repeat.
Standard v. Enhanced Cases
2nd Gen of Human Security
Human Security Networked is seemingly lackluster since the end of the 1990s.
Notable Successes
Ottawa Treaty banning anti-personnel landmines.
The International Criminal Court (ICC)
Resolving some issues addressing the sale and distribution of conflict diamonds and small arms.
More of a space for member states (the head of which rotates every six months) to air their pet projects.
Eradicate Poverty and Promote Prosperity
2030 Agenda for Sustainable Development
Human Security Approach
Threats to Human Life
Dignity, livelihoods and survival.
Vulnerabilities must be attacked holistically not individually.
Prevention
Partnerships? Are they impactful?
The EU is more well positioned for implementing a human security agenda on its own.
Need to maintain clear conceptualization—Fishing Rights vis-à-vis Human Trafficking and endemic poverty.
Define human security in terms of thresholds, rather than a blanket slate of issues.
Clarity of Intent – Must maintain a critical edge, even when it is swept into the “mainstream.”
European Disintegration
Hegemonic Stability Theory
Broader Hegemonic Platform
A renewed Franco-German Coalition
A Franco-German coalition with the addition of Poland to represent the Central and Eastern members states
The Coalition of eight members states (including Germany) stretching from the Netherlands to the Baltic Sea.
The growth of Euroscepticism
Discussion Questions
1. Following Hervey, in what way does Europe’s Human Rights court struggle to implement its laws?
2. How did the EU structure the issue of Human Security and what are the challenges it continues to face?
3. How Effective are EU and National Policies regarding asylum and refugees?
4. What has the European Convention on Human Rights done for Europe?
5. Is the argument of “disintegration” compelling? Which of Webber’s solutions is applicable and in your opinion, what issue (economic, immigration, security etc.), would lead the way toward the disintegration of the European Union.
HOW
EFFECTIVE ARE NATIONAL AND EU POLICIES IN
THE AREA OF FORCED MIGRATION?
Eiko R. Thielemann*
Large numbers of displaced persons and their highly unequal distribution constitute a
significant challenge for policy-makers. Questions about the determinants of such
flows and how governments can manage them have been a long-standing concern
of the academic literature. It has sometimes been argued that if a State’s reception
burden is large, then that country’s policies are overly generous relative to other
destination countries. However, this article shows that this argument risks overesti-
mating the link between the policies of destination countries and the direction and
size of migration flows. It argues that the effectiveness of both unilateral and multi-
lateral policies to regulate forced migration flows is limited. To support this argument,
the article reviews the literature on the role of push–pull factors of international
migration and provides both qualitative and quantitative empirical data to analyse
the impact and effectiveness of national and international regulatory initiatives in
this field. Particular attention will be placed on the role of regional cooperation in the
context of the highly institutionalized asylum and refugee policy framework of the
European Union.
Keywords: policy effectiveness, push–pull factors, European Union, burden-sharing
1. Introduction
In an increasingly globalized world, large numbers of displaced persons and their
highly unequal distribution constitute a key challenge for public policy-makers.1
This challenge is compounded by the fact that one State’s policies, aimed at
regulating migration, will often create negative externalities for other States.
* Eiko Thielemann is a Senior Lecturer in European Politics and Director of the Migration Studies Unit at the
London School of Economics and Political Science.
1 The terms “displaced person”, “forced migrant”, and “protection seeker” are used interchangeably in this
article. They refer to individuals who have left their country of origin involuntarily in the belief that they
cannot or should not return to it in the near future. In this usage, the terms refer to asylum-seekers and
refugees under the Geneva Convention but also those who have been forced to leave their home country for
environmental or other reasons. It should be recognized that the dividing line between categories of “forced”
and “voluntary” migration is not always clear-cut. It might be more appropriate to conceptualize the idea of a
continuum with clear cases of involuntary migration on the one side, clear cases of voluntary migration on the
other and a large ‘grey zone’ in between (International Organization for Migration (IOM), Migration, Climate
Change and the Environment: Assessing the Evidence, IOM Policy Brief, Geneva, IOM, 2009, 5, available at:
http://publications.iom.int/bookstore/free/migration_and_environment (last visited 14 Sep. 2012)).
Refugee Survey Quarterly, Vol. 31, No. 4, pp. 21–37 � Author(s) [2012]. All rights reserved.
For Permissions, please email: journals.permissions@oup.com
DOI:10.1093/rsq/hds017
Policy-makers trying to find effective responses to the actual or potential dis-
placement of persons have been faced with the following questions: what ex-
plains the variation in the numbers of forced migrants that States receive? What
role can we expect public policy measures to play in influencing such flows? And
how effective have such policies been in practice? From a national perspective, it
has sometimes been argued that if a State’s asylum reception responsibilities are
high, then that country’s policies are probably too lenient and its welfare pro-
visions for migrants too generous relative to other destination countries. By
increasing the restrictiveness of its policy, the argument goes, a State will be
able to reduce inflows and redress the inequitable distribution of refugee respon-
sibilities. However, this argument risks overestimating the link between the
policies of destination countries and the direction and size of migration flows.
This article argues that the effectiveness of migration and non-migration policies
in regulating migration flows is limited.2 To support this argument, the article
analyses the role of push and pull factors of migration, the impact of different
types of national policies and the effects of international cooperation on forced
migration, focusing on the highly developed institutions of regional cooperation
in the European Union (EU) context.
2. The determinants of migration flows: push and pull factors
Underlying some of the most prominent theories and models of international
migration3 is the so-called push–pull model. It is a conceptual framework that
suggests that there are push factors in countries of origin that cause people to
leave their country,4 and pull factors that attract migrants to certain receiving
countries. Although this model was developed with economic migration in mind
and has its limitations,5 it does offer important insights for research on forced
migration too. An analysis of the most established data available in the wider
field of forced migration, the annual statistical reports of the United Nations
2 States can, of course, pursue several objectives in this field. While the humanitarian aim of protecting
displaced persons is clearly one of them, arguably the principal objective for any sovereign State is likely
to be the control of migration inflows as any unregulated influx of migrants is likely to be viewed as a threat to
other state objectives. Some have even portrayed the relationship between these two objectives in terms of a
trade-off: a policy choice between large numbers of migrants with relatively few rights or smaller number of
migrants that are granted more rights (M. Ruhs & P. Martin, “Numbers vs. Rights: Trade-Offs and Guest
Worker Programs”, International Migration Review, 42(1), 2008, 249–265).
3 D.S. Massey et al., “Theories of International Migration: Review and Appraisal”, Population and Development
Review, 19(3), 1993, 431–466.
4 For a useful overview, see United Nations Development Programme (UNDP), Human Development Report –
Overcoming Barriers: Human Mobility and Development, New York, UNDP, 2009, available at: http://hdr
.undp.org/en/reports/global/hdr2009/ (last visited 14 Sep. 2012).
5 For example, the model tends to underestimate factors that can facilitate migration, such as migration
networks or the people smuggling industry. For a critical review, see H. de Haas, Migration Transitions: a
Theoretical and Empirical Inquiry into the Developmental Drivers of International Migration, International
Migration Institute (IMI), Working Paper No. 24, Oxford University, 2010, available at: http://www.imi
.ox.ac.uk/pdfs/imi-working-papers/wp24-migration-transitions-1 (last visited 14 Sep. 2012).
22 Eiko R. Thielemann j National and EU Policies in Forced Migration
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High Commissioner for Refugees (UNHCR), shows the highly unequal distri-
bution of responsibilities for forced migrants (Figure 1).
In particular, it reminds us that the world’s most developed countries host less
than 20 per cent of the world’s forced migrants and refugees. A more detailed
scrutiny of asylum trends in industrialized countries over the past two decades
(Figure 2) highlights the importance of push factors in the evolution of forced
migration flows. It shows that asylum applications peaked during the Bosnian
war in the early 1990s and that numbers were also very high during the major
refugee-producing conflicts in Kosovo, Afghanistan, and Iraq in the late 1990s
and in early 2000. The broad fluctuations in asylum flows, hence, are at least in
part driven by violent conflicts, which constitute one of the principal push
factors for forced migration.
The results of this kind of broader quantitative analysis have been supported
by several case studies. For example, an influential study on Switzerland con-
cluded that governments’ policy efforts to regulate migration flows can be
expected to be ineffective “if the push factors in a region nearby to the receiving
states reach a critical level”.6 Even in the case of the often quoted 71 per cent
drop in asylum applications in Germany from 1992 to 1994 (see Table 1), which
has widely been attributed to the introduction of new restrictive policies that
came into effect with the changes to the German Basic Law in 1993, many
Figure 1. Population of concern to UNHCR in 2007
2.5
5.1
1.6
0.
0
0.5
9.7
10.7
13.7
3.0
3.6
0.6
31.7
– 5.0 10.0 15.0 20.0 25.0 30.0 35.0
Africa
Asia
Europe
Latin America and the Caribbean
Northern America
Total
Total population of concern (millions)
Refugees (millions)
Source: UNHCR, Statistical Yearbook: Trends in Displacement, Protection and Solutions,
Geneva, UNHCR, 2009.
6 T. Holzer, G. Schneider & T. Widmer. “The Impact of Legislative Deterrence Measures on the Number
of Asylum Applications in Switzerland (1986�1995)”, International Migration Review, 34(4), 2000,
1182–1216.
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observers appear to have not sufficiently taken into account that this drop hap-
pened against an overall drop of 70 per cent in the number of applicants from
former Yugoslavia, for which Germany had been the preferred country of des-
tination. Again, changes in push factors, i.e. the improvement in the security
situation in Bosnia, were clearly more responsible for the drop in asylum appli-
cations than any particular change in policy.7 In 1994, Germany, as the major
recipient of forced migrants from former Yugoslavia, was the greatest beneficiary
of then much smaller overall numbers of asylum-seekers leaving Bosnia in search
of protection.
Figure 2. Total number of asylum applicants in OECD Countries, 1985–2007
0
100000
200000
300000
400000
500000
600000
700000
1
9
8
5
1
9
8
6
1
9
8
7
1
9
8
8
1
9
8
9
1
9
9
0
1
9
9
1
1
9
9
2
1
9
9
3
1
9
9
4
1
9
9
5
1
9
9
6
1
9
9
7
1
9
9
8
1
9
9
9
2
0
0
0
2
0
0
1
2
0
0
2
2
0
0
3
2
0
0
4
2
0
0
5
2
0
0
6
2
0
0
7
EU27
Non-EU (27)
Source: UNHCR, Statistical Yearbook: Trends in Displacement, Protection and Solutions,
Geneva, UNHCR, multiple years [author’s own calculations].
Table 1. The role of push factors: forced migrants in Europe, 1992 and 1994
1992 1994 Drop
(per cent)
Asylum applications in Germany 438,191 (62 per cent
of total)
127,210 (38 per cent
of total)
71
Asylum applications in Europe 708,984 335,811 53
Asylum applications from former
Yugoslavia in Europe
419,637 124,149
70
Asylum applications from former
Yugoslavia in Germany
223,555 (52 per cent) 55,034 (43 per cent) 75
Source: UNHCR data from Thielemann, “The Effectiveness of Asylum Policy”, 467.
7 E.R. Thielemann, “The Effectiveness of Asylum Policy in Controlling Unwanted Migration”, in C. Parsons
& T. Smeeding (eds.), Immigration and the Transformation of Europe, Cambridge, Cambridge University
Press, 2006, 442–472.
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Although push factors are often responsible for migrants’ decisions to leave their
home country, it is the variation in pull factors that is widely seen as determining
the direction of migration flows, i.e. influencing a migrant’s choice of destin-
ation country. A review of the theoretical literature on migration8 produces five
principal categories of pull factors – economic, historic, political, geographic,
and policy-related – which will be discussed further below.9
3. Which pull factors matter? The role of policy relative to
structural determinants
There is an extensive general literature on States’ capacity to manage migration.
10
A number of studies have focused on forced migration and have aimed to assess
the relative impact of different pull factors, in particular, with regard to comparing
the influence of policies relative to structural factors. Hatton11 argues that
although the effect of policies is limited, it is still significant. Regarding the
evolution of asylum flows since the early 1990s, he writes:
[T]he reason that the effects of policy on the proportion of applicants
Fowing to different parts of the EU seem to have been small is that similar
policy responses have occurred across the board. But in the absence of
growing policy restrictiveness, the absolute number of applications to the
EU would have ballooned by even more than it did.
This research is supported by Neumayer,12 who finds that restrictive asylum
policies (in this study, countries with low recognition rates) are systematically
associated with lower relative shares of asylum-seekers. However, as the use of
recognition rates as a proxy for the relative restrictiveness or liberalness of States’
policies on forced migration has its limitations, other studies use a composite
measure of policy to capture the variation in asylum policies among States.13
This study demonstrates that structural pull factors provide more powerful
explanations of the relative distribution of asylum responsibilities than
8 In particular, see Massey et al., “Theories of International Migration”, 431–466.
9 For a more extensive summary of these different pull factors see Thielemann, “The Effectiveness of Asylum
Policy”, 451–455.
10 G.P. Freeman, “Can Liberal States Control Unwanted Migration?”, Annals of the American Academy of
Political and Social Science, 534, 1994, 17–30; C. Joppke, “Why Liberal States Accept Unwanted
Immigration”, World Politics, 50(2), 1998, 266–293; S. Castles, “Why Migration Policies Fail”, Ethnic
and Racial Studies, 27(2), 2004, 205–227; S. Castles, “The Factors that Make and Unmake Migration
Policies”, International Migration Review, 38(3), 2006, 852–884; F. Düvell, Illegal Migration in Europe:
Beyond Control?, London, Palgrave, 2005.
11 T.J. Hatton, “Seeking Asylum in Europe”, Economic Policy, 19(38), 2004, 51.
12 E. Neumayer, “Asylum Destination Choice: What Makes Some West European Countries More Attractive
Than Others”, European Union Politics, 5(2), 2004, 174.
13 E.R. Thielemann, “Why European Policy Harmonization Undermines Refugee Burden-Sharing”, European
Journal of Migration and Law, 6, 2004, 43–61.
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policy-related factors. Like similar studies,14 it finds that the most important
factors explaining the direction of forced migration flows (i.e. the relative at-
tractiveness of destination countries) relate to historical and network effects.
Historical connections, colonial links, language ties, or cultural networks be-
tween countries of origin and destination facilitate transport, trade, and com-
munication links between countries. These links tend to promote movements of
people from one country to the other.15 Political and geographic factors are also
found to matter in an important way. A host State’s liberal reputation matters,
particularly for humanitarian migrants, as does the geographic distance between
countries of origin and destination countries. Using data for 20 Organization for
Economic Co-operation and Development (OECD) countries over a 15-year
period, Thielemann’s study finds that the impact of policies relative to other
structural pull factors is more limited than has sometimes been assumed.
Restrictiveness in national policies does not automatically go hand in hand
with small inflows. On the contrary, the study shows that since the mid-1980s
countries such as Germany, Switzerland, and Austria experienced the highest
relative asylum inflows in Europe, despite being among the countries that
had introduced the most restrictive policies in Europe. Powerful structural
pull factors trumped the effects of restrictive policies.
4. The impact of different types of migration and non-migration
policy measures
Even if policy-related pull factors have a smaller impact on migration flows than
the key structural pull factors, it is still important to ask what types of policies are
more likely to influence migration than others. National policy-making over the
past 10–15 years in Europe has been characterized by the adoption of new, often
restrictive, legislative, and administrative instruments aimed to better control
migration. Policy-makers have introduced changes in three areas in particular.
First, measures in the area of access control policy (i.e. to rules and procedures
governing the admission of foreign nationals) have included the tightening of
visa policies, regulations for carriers, safe third-country provisions, etc. Second,
rules concerning access to residence (temporary or permanent) have also been
made more restrictive. In the asylum context, restrictive measures in this dimen-
sion have included changes to countries’ refugee determination systems (e.g.
fast-track procedures), appeal rights and rules concerning subsidiary protection.
Finally, integration policies have also been tightened in the process of toughening
up countries’ policy regimes. This has meant that rules concerning the rights and
benefits given to asylum-seekers inside a country of destination (e.g. work and
housing conditions, rules on freedom of movement, welfare provisions,
14 T. Havinga & A. Böcker, “Country of Asylum by Choice or by Chance: Asylum-Seekers in Belgium, the
Netherlands and the UK”, Journal of Ethnic and Migration Studies, 25(1), 1999, 43�61; Hatton, “Seeking
Asylum in Europe”, 5�62; Neumayer, “Asylum Destination Choice”, 155�180.
15 Massey et al., “Theories of International Migration”, 445�447.
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educational opportunities, etc.) have seen new restrictions. In order to assess how
countries’ policy regimes have evolved over time in terms of their relative re-
strictiveness, some studies16 have created policy indices that seek to quantify
cumulatively countries’ policies across different dimensions. Owing to limita-
tions in the available comparative data,17 it is impossible to provide comprehen-
sive accounts. By focusing on a selection of key measures that run across all three
principal policy dimensions (access, determination, and integration),
Thielemann’s research sought to arrive at a reasonable approximation of a
broader composite policy index using measures that have been widely regarded
by policy-makers as having the potential to significantly influence an asylum-
seeker’s decision as to which country to apply to.18 Thielemann19 finds that the
significance of his policy index is largely due to the effect of two sets of policy
measures, which regulate access to residence and control access to the labour
market. First, the likelihood of forced migrants receiving some kind of status that
will allow them to remain in the host country legally clearly is of the utmost
importance. We have known for some time that host countries interpret
common legal obligations for displaced persons in very different ways20 and
that host States’ status determination decisions vary greatly between countries,
even for forced migrants from the same country of origin.21 Second, given the
high significance of employment opportunities for migrants, it is not surprising
that labour market restrictions can play an important role in decisions on choice
of destination country for those migrants who are in a position to make a choice.
This will be true not only for those applicants whose motives are primarily
economic, but also for those forced migrants who have the choice between
several safe host countries. Overall, this suggests that even though displaced
persons will have only limited insights for decisions on where best to seek pro-
tection, some relevant information on States’ policies clearly appears to be
transmitted to potential migrants through community networks or agents.
16 Hatton, “Seeking Asylum in Europe”, 5–62; Thielemann, “Why European Policy Harmonization
Undermines Refugee Burden-Sharing”, 43–61; Thielemann, “The Effectiveness of Asylum Policy”,
442–472.
17 The International Migration Policy and Law Analysis (IMPALA) database aims at closing these data gaps.
IMPALA is a collaborative project of researchers from Harvard University, the University of Luxembourg,
the University of Amsterdam, the London School of Economics, the University of Sydney and the
Wissenschaftszentrum in Berlin. It is collecting comparable data on immigration law and policy in over
25 countries of immigration between 1960 and 2010. More information on IMPALA can be found at: www.
impaladatabase.org. (last visited 14 Sep. 2012).
18 See e.g. UK Home Office, Reducing Asylum Applications, Internal working paper in preparation for the
Ministerial meeting of 15 May 2002 [on file with the author].
19 Thielemann, “The Effectiveness of Asylum Policy”, 442–472.
20 European Council on Refugees and Exiles (ECRE), Non-State Agents of Persecution and the Inability of the
State to Protect: The German Interpretation, European Legal Network on Asylum (ELENA) Research Paper,
London, ECRE, 2000, available at: http://www.ecre.org/research/nsagentsde (last visited 14 Sep. 2012).
21 T. Holzer & G. Schneider, Asylpolitik auf Abwegen: Nationalstaatliche und Europäische Reaktionen auf die
Globalisierung der Flüchtlingsströme, Opladen, Leske and Budrich, 2002, 43; E. Neumayer, “Asylum
Recognition Rates in Western Europe: Their Determinants, Variance and Lack of Convergence”, Journal
of Conflict Resolution, 49(1), 2005, 43–66.
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However, the studies mentioned above found only a much weaker or no
significant effect by policies in the integration dimension. For example,
Thielemann’s study showed that measures that seek to limit a migrant’s freedom
of movement within a host country (dispersal schemes) and measures that seek to
curtail cash benefit payments to asylum-seekers (voucher schemes) have had no
significant impact on the relative distribution of forced migrants among OECD
countries.22 Neumayer corroborates this as he also finds no significant evidence
for the impact of difference in welfare regimes on the distribution of forced
migrants.23 The limited impact of policies in the integration dimension is per-
haps surprising as it has been those policies that have shaped prominent debates
about popular destination countries being a “soft touch” when it comes to im-
migration. Debates that have triggered demands that countries with large num-
bers of asylum-seekers should focus on restricting access to welfare (and prevent
“welfare shopping”) when trying to regulate migration more effectively. Clearly
the symbolic effects of welfare restrictions to migrants are greater than such
policies’ substantive impact. In sum, existing studies suggest that some informa-
tion about variations in policies on access to territory and work does inform the
choices of migrants in a significant way. However, knowledge about variation in
welfare regimes is either not available or less relevant when it comes to migrants’
choices of destination country.
5. Forced migration, collective action, and international
cooperation
Having demonstrated the limitations of national policies aimed at regulating
migration flows, it is important to stress that multilateral refugee protection
efforts have shortcomings too, as they face a number of collective action chal-
lenges. Crucially, these stem from the fact that a host State’s protection obliga-
tions are only triggered once a refugee enters into its jurisdiction. The procedures
for dealing with such obligations at that point can be lengthy and costly for host
countries. As States face no such obligations for forced migrants outside their
territory, there is an incentive for States to use restrictive policies unilaterally in
an attempt to limit the number of forced migrants entering their territory, while,
at least indirectly, encouraging migrants to seek protection in another country or
region.24
In Europe, one of the objectives of the EU in creating a Common European
Asylum System has been to curtail such free-riding dynamics by creating a:
level playing field, a system which guarantees to persons genuinely in need
of protection access to a high level of protection under equivalent
22 Thielemann, “The Effectiveness of Asylum Policy”, 467–468.
23 Neumayer, “Asylum Destination Choice”, 176.
24 E.R. Thielemann (ed.), “European Burden-Sharing and Forced Migration”, Journal of Refugee Studies, 16(3),
2003, 225–235.
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conditions in all Member States while at the same time dealing fairly and
efficiently with those found not to be in need of protection.25
Since the mid-1980s, the EU has developed a set of minimum standards on
specific areas of asylum policy applicable in the legal systems of all Member
States. Whether such common policies have strengthened or weakened the pro-
tection of forced migrants has been the subject of considerable debate. It has
sometimes been said that European cooperation on forced migration has led to
the development of the “Fortress Europe”, as common policies have made it
increasingly difficult for displaced persons to reach EU territory and benefit from
effective protection.26 However, El-Enany and Thielemann27 have argued that
European cooperation has improved protection standards for those that have
managed to enter EU territory. They argue that the development of a common
asylum law on the basis of EU minimum standards in this area has curtailed
regulatory competition among the Member States and in doing so has halted the
race to the bottom in protection standards in the EU. Rather than leading to
policy harmonization at the “lowest common denominator”, EU policies have
led to an upgrading of domestic laws in several Member States, strengthening
protection standards for several groups of forced migrants.28 They show that
European cooperation has had some significant rights-enhancing effects on pro-
tection standards in four main legislative areas: reception, qualification, proced-
ures, and return.
With regard to reception, they show that key elements of the Reception
Directive29 have led to an upgrading of domestic standards in several Member
States. EU law on reception conditions does not reflect the lowest common
denominator of standards that previously existed in the Member States.
Instead, the Reception Directive has led to the adoption of more favourable
provisions for asylum-seekers at the national level.30 In particular, the
Reception Directive has enhanced protection standards in areas such as rules
on unaccompanied minors, access to health care and domestic labour markets.31
The Qualification Directive sets out the rules and principles to be applied
by Member States in their identification of refugees and those deserving of
25 European Commission, Green Paper on the Future Common Asylum System, COM(2007) 301 final,
6 Jun. 2007.
26 J.C. Hathaway, “Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European
Economic Integration”, Cornell International Law Journal, 26(3), 1993, 719–736.
27 E.R. Thielemann & N. El-Enany, “Refugee Protection as a Collective Action Problem: Is the EU Shirking its
Responsibilities?”, European Security, 19(2), 2010, 209–229.
28 Ibid., 215.
29 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of
asylum seekers, OJ L 31/18, 6 Feb. 2003.
30 Odysseus Academic Network, Comparative Overview of the Implementation of the Directive 2003/9 of 27
January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in the EU Member States,
Brussels, Odysseus Academic Network, Oct. 2006, 11, available at: http://www.unhcr.org/refworld/docid/
484009fc2.html (last visited 14 Sep. 2012).
31 Ibid., 113.
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subsidiary protection status.32 The Directive significantly advanced standards in
some Member States where, as a result of the new EU law, non-State actors of
persecution were recognized and subsidiary protection status introduced into
domestic law for the first time.33 The Directive’s provisions on subsidiary pro-
tection have been welcomed more generally34 as they represent the first supra-
national legislation in Europe that defines who, and under what conditions,
qualifies for subsidiary protection, creating an obligation to grant this status
to those who fulfil the criteria. In doing so, the Directive recognized the fact
that persons fleeing the indiscriminate effects of violence associated with armed
conflict, but who do not fulfil the criteria of the 1951 Refugee Convention,35
nevertheless require international protection. According to the UNHCR:
[T]he Qualification Directive has resulted in much greater conformity of
legal interpretation on non-State actors of persecution or serious harm [. . .].
The shift to a focus on the availability of protection, rather than the actor of
persecution or serious harm, should be commended. In France and
Germany, the Directive has enlarged the scope of grounds for granting
protection and thereby reinforced the protection system. This is illustrated
by the increase in decisions by the authorities in Germany granting refugee
status to Somalis.36
In relation to procedural rule in the European asylum system, the Procedures
Directive37 has strengthened the law on procedural guarantees such as the op-
portunity to communicate with the relevant authorities, access to an appeal
process as well as the procedure for the withdrawal of refugee status. While
not going far enough for some,38 the Directive has also improved standards of
protection for individuals accessing EU territory in particular with regards to
32 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted, OJ L 304/12, 30 Sep. 2004.
33 ELENA, The Impact of the EU Qualification Directive on International Protection, Report by the European
Legal Network on Asylum, Oct. 2008, 5, available at: www.ecre.org/component/downloads/downloads/131
.html (last visited 14 Sep. 2012).
34 UNHCR, Asylum in the European Union: A Study of the Implementation of the Qualification Directive,
Geneva, UNHCR, Nov. 2007, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid
¼473050632&page¼search (last visited 14 Sep. 2012).
35 Geneva Convention Relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force:
22 Apr. 1954).
36 UNHCR, Asylum in the European Union, 9.
37 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status, OJ L 326/13, 13 Dec. 2005.
38 ECRE et al., Call for Withdrawal of the Asylum Procedures Directive, 22 Mar. 2004, available at: http://www
.statewatch.org/news/2004/mar/ngo-asylum-letter (last visited 14 Sep. 2012); UNHCR, Rudd Lubbers
Calls for EU Asylum Laws Not to Contravene International Law, Press Release, Geneva, UNHCR, 24 Mar.
2004, available at: http://www.unhcr.org/40645bd77.html (last visited 14 Sep. 2012); European Parliament,
European Parliament Legislative Resolution on the Amended Proposal for a Council Directive on Minimum
Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 14203/
2004�C6-0200/2004 – 2000/0238(CNS).
30 Eiko R. Thielemann j National and EU Policies in Forced Migration
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so-called safe third-country rules.39 Under these provisions, asylum claims may
be refused if the applicant can be returned to a ‘safe third country’ in which
asylum-seekers could have found protection as a refugee, and in which they were
physically present prior to arriving in the next country in which they are apply-
ing for asylum. Furthermore, with regard to appeal rights, the Directive’s pro-
visions on judicial scrutiny went considerably further than the previous status
quo as it requires Member States to ensure an effective remedy before a court or
tribunal as opposed to merely a reconsideration of the case by the administrative
authority that took the original decision. Existing practices in countries like
Greece therefore had to be revised. Moreover, in countries like the UK, the
Directive required the authorities to improve their standards with regard to so
called “manifestly unfounded” asylum claims. Under the Directive, Member
States now have to ensure that applications for asylum are neither rejected nor
excluded from examination on the sole ground that they have not been made as
soon as possible.
40
Finally, regarding new EU rules for returning illegally staying third-country
nationals (including failed asylum-seekers), the Return Directive41 provides for a
set of rules to be applied throughout the removal process. It entails provisions
concerning the form and process of return decisions, the use of coercive meas-
ures, rules on detention and safeguards for migrants pending their removal.
Again, several of the new EU provisions strengthen the rights of migrants com-
pared to prior legislation in the Member States. Although national legislation
generally provides that the confinement of returnees should take place in special
facilities (different to those in which ordinary prisoners are detained), that has
not always been the case in practice across the EU. That means that returnees can
no longer be legally held in normal prison facilities (together with convicted
criminals) as had been the practice in countries like Ireland.42 The Directive has
also strengthened the rights of vulnerable groups (e.g. in terms of new rules on
the conditions for detaining minors) and more generally made immigration
detention subject to the principle of proportionality, providing that deprivation
of liberty is justified only to prepare return or carry out the removal process and
only in circumstances when the application of less coercive measures would not
be sufficient. Moreover, under the Directive, detention orders that are not issued
by judicial authorities have to provide for the possibility of judicial review.
39 D. Ackers, “The Negotiations on the Asylum Procedures Directive”, European Journal of Migration and Law,
7, 2005, 30.
40 Refugee Council, Refugee Council Response to UK Implementation of Council Directive 2005/85/EC of
1 December 2005 Laying Down Minimum Standards on Procedures in Member States for Granting and
Withdrawing Refugee Status, London, UK Refugee Council, Oct. 2007, 7, available at: http://www.refugee-
council.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx?resource¼1D2934AB-8A31-407A-AB59-
ED7428921637&mode¼link&guid¼d143856a233e4842839b54d030342c92 (last visited 14 Sep. 2012).
41 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common
standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/
98, 16 Dec. 2008.
42 K. Hailbronner, Refugee Status in EU Member States and Return Policies, Study, Brussels, European
Parliament, Jul. 2005, 144.
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In States where detention and re-entry bans for migrants could (in principle)
previously be imposed without any restriction on time, Member States had to
change their national legislations in order to establish upper time limits. Higher
asylum standards in the Member States as a result of new EU law of course only
matters to the extent to which new legal provisions are properly implemented by
the Member States. And in this regard, it is well established that EU asylum
policies are still suffering from significant implementation deficits.43
Overall, the analysis of these four key directives suggests that European
cooperation and the development of the common asylum law on the basis of
EU minimum standards in this area has curtailed regulatory competition and in
doing so it has largely halted the race to the bottom in protection standards in
the EU. Rather than leading to policy harmonization at the “lowest common
denominator”, EU asylum law has led to significantly strengthened protection
standards in the domestic asylum laws of several Member States.
These arguments about the rights enhancing impact of EU cooperation
when it comes to rules that apply to migrants that have reached a Member
State’s territory notwithstanding, there continues to be concern about the po-
tentially detrimental impact of the EU in relation to forced migrants’ attempts to
access EU territory in the first place. The EU has undertaken considerable
measures to more effectively control its external borders, most notably through
operations on behalf of the European Border Agency FRONTEX. There has
been considerable criticism about the EU using new external border measures to
deflect asylum-seekers from the Member States’ territory in an attempt to shift
refugee responsibilities to other countries outside of the EU.44 However, there
has been limited empirical support for these claims which have led others to
suggest that this concern of regional cooperation in Europe reducing protection
efforts by the EU when compared with similar developed countries in North
America and elsewhere might be overstated.45 An empirical analysis of the total
share of forced migrants that the EU deals with relative to all asylum applicants
in the OECD area shows that the EU’s relative responsibilities have remained
quite stable since the mid-1980s. This analysis (Figure 3) shows that the EU’s
share of total asylum applications in the industrialized world has fluctuated
significantly over time, but today is similar to its share from almost three decades
ago. There is, therefore, little evidence to suggest that regional cooperation and
the development of common asylum policies has led to free-riding by the EU.
43 For an overview, see: Odysseus Academic Network, Comparative Overview; UNHCR, Asylum in the
European Union.
44 S. Lavenex, “‘Passing the Buck’: European Union Refugee Policies towards Central and Eastern Europe”,
Journal of Refugee Studies, 11(2), 1998, 126–145; G. Noll, “Risky Games? A Theoretical Approach to
Burden-Sharing in the Asylum Field”, Journal of Refugee Studies, 16(3), 2003, 236–252; E.M. Uçarer,
“Human Insecurity: Burden-Shirking, Burden-Shifting, and Burden-Sharing in the Emergent European
Asylum Regime”, International Politics, 43, 2006, 219–240; C. Levy, “Refugees, Europe, Camps/State of
Exception: ‘Into the Zone’, the European Union and Extraterritorial Processing of Migrants, Refugees, and
Asylum Seekers (Theories and Practice)”, Refugee Survey Quarterly, 29(1), 2010, 92–119.
32 Eiko R. Thielemann j National and EU Policies in Forced Migration
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However, within a region, attempts to develop common policies to create a “level
playing field” and bring about a more equitable distribution of responsibilities
between States can be counterproductive. If structural factors are indeed often
more important than policy-related pull factors in determining how responsi-
bilities for forced migrants are distributed among countries, then the harmoniza-
tion of policy measures might not achieve burden-sharing objectives. Even if
international cooperation succeeded in fully harmonizing policies in this field,
refugee responsibilities across countries can be expected to remain highly un-
equal owing to differences in the structural pull factors that characterize receiving
States.
Another example for the sometimes counter-productive effect of EU policy
initiatives is the EU’s Dublin system.46 Under this system, Member States agreed
on a mechanism that assigns responsibility for asylum-seekers in the EU to the
“country of first entry”. In the case of secondary movements to another Member
State, the system envisages return requests issued by this secondary destination
country and eventually the actual transfer of individuals back to the country of
first entry. In establishing this mechanism, the Member States have placed the
responsibility for (and the cost of ) securing the EU’s external border dispropor-
tionately onto the EU’s external border countries, which already face dispropor-
tionate asylum burdens (see Figure 4). One finds that relative to their size, smaller
countries such as Cyprus, Malta, and Sweden tend to make some of the largest
contributions to EU refugee protection efforts, while the largest EU countries
(such as Germany, France, or the UK) face much more limited responsibilities.
Figure 3. Relative share of asylum applicants in OECD countries, 1985–2007
Source: UNHCR, Statistical Yearbook, Geneva, UNHCR, multiple years [author’s own
calculations].
46 E.R. Thielemann & C. Armstrong, “EU Internal Security Cooperation under the Schengen and Dublin
Systems”, European Security, 21(4), 2012 (forthcoming).
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It is reasonable to assume that the Dublin system’s “first country of entry”
principle would further reinforce such inequalities and work to the advantage
of the wealthier, core Member States and to the detriment of already more
heavily burdened Member States at the external borders of the EU. When one
analyses the operation of the Dublin system, this expectation is borne out in
practice. Smaller, external border countries do, in fact, receive a disproportionate
number of transfer requests (the majority of which are issued by the core
Member States). This pattern becomes even more pronounced when the
number of relative transfer requests received is measured proportionally against
population size (see Figure 5).
Figure 4. Relative number of asylum applications received per 1,000 of population (2009)
Source: EUROSTAT, OECD [author’s own calculations; calculated by dividing total number
of asylum applications received by a Member State by the total population size of that
Member State (in thousands)].
Figure 5. Relative number of Dublin transfer requests received per 1,000 of population
(2009)
Source: EUROSTAT, OECD [author’s own calculations; calculated by dividing total
number of incoming requests received by a Member State by total population size (in
thousands)].
34 Eiko R. Thielemann j National and EU Policies in Forced Migration
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Finally, attempts to develop fairer and more effective EU burden-sharing mech-
anisms through the creation of the EU ‘mass influx directive’ have only
had limited success.47 While this initiative to establish an EU emergency reset-
tlement mechanism was passed in the aftermath of the Kosovo refugee crisis,
this mechanism has not been used since. The directive develops a range of
ultimately non-binding mechanisms based on the principle of double voluntar-
ism which means that the agreement of both the recipient State and the
individuals concerned is required before protection seekers can be moved from
one country to another. The fact that this directive was not called upon in the
recent migration inflows into parts of Southern Europe that were triggered by
the war in Libya casts serious doubts about the effectiveness of this legal
instrument.
Given the shortcomings of regional responsibility-sharing initiatives,48 it is
not surprising that there is a broad consensus in the literature on the ineffectiveness
of more global policy initiatives on refugee burden sharing.49 The one excep-
tion can be found in the context of large-scale refugee emergency situations,
such as in Southeast Asia in the 1970s or in the Balkans in the 1990s, when
sometimes quite effective ad hoc resettlement mechanisms such as the
“Comprehensive Plan of Action” for the resettlement of Vietnamese refugees50
or the Kosovo Evacuation Programme51 were developed. However, these initia-
tives were exceptional responses to particular crises, and States failed to institu-
tionalize these into mechanisms that could be called upon if, and when, similar
resettlement needs were to emerge again. Schuck’s proposal for such an institu-
tionalization centred on the idea of a decentralized, market-based refugee sharing
system52 has similarities to the Kyoto emission-trading scheme. According to
this model, an international agency would assign a refugee protection quota to
each participating State on the basis of which States would then be allowed to trade
their quota by paying others (with money or in kind) to fulfil their obligations.
However, the idea raised significant unease about treating refugees as commodities
in inter-state transactions53 and was never considered seriously by policy-makers.
Others have advocated the promotion of burden-sharing mechanisms that
47 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection
in the event of a mass influx of displaced persons and on measures promoting a balance of efforts
between Member States in receiving such persons and bearing the consequences thereof, OJ L 212/12,
20 Jul. 2001.
48 For a summary, see European Parliament, 2010.
49 J.C. Hathaway (ed.), Reconceiving International Refugee Law, Boston, Kluwer, 1997; P. Schuck, “Refugee
Burden-Sharing: A Modest Proposal”, Yale Journal of International Law, 22, 1997, 243–297;
E.R. Thielemann & T. Dewan, “The Myth of Free-Riding: Refugee Protection and Implicit
Burden-Sharing”, West European Politics, 29(2), 2006, 351–369; A. Betts, Protection by Persuasion:
International Cooperation in the Refugee Regime, New York, Cornell University Press, 2009.
50 Schuck, “Refugee Burden-Sharing”, 254–259.
51 J. Van Selm (ed.), Kosovo’s Refugees in the European Union, London, Pinter, 2000.
52 Schuck, “Refugee Burden-Sharing”.
53 D. Anker, J. Fitzpatrick & A. Shacknove, “Crisis and Cure: A Reply to Hathaway/Neve and Schuck”,
Harvard Human Rights Journal, 11, 1998, 306.
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are based on an implicit trading logic that recognizes that States contribute to
international collective goods such as refugee protection in different ways.54
In the refugee context, these include what might be called pro-active measures,
which attempt to halt the escalation of potential refugee problems by, for instance,
sending peacekeeping troops to a region in order to prevent or contain forced
migration. Another set of contributions are those which can be called reactive
measures. The latter measures deal with the consequences of refugee problems
once they have occurred, in particular by admitting protection seekers to a
host country’s territory. While issues of different types of protection contributions
have been raised in international negotiations, they have not led to any new inter-
national burden-sharing mechanisms.
In summary, it seems fair to say that until now, destination countries have
shown an exaggerated concern over pull factors. This has side-lined other ini-
tiatives aimed at tackling the root causes of forced migration. Both national
and multi-lateral policy initiatives have so far overly focused their attention on
reactive measures of border control, deterrence, return and burden sharing from
the perspective of receiving countries. Despite some considerable rhetoric
to the contrary, they have focused on post-crisis rescue mechanisms without
sufficiently engaging and cooperating pro-actively with sending countries to
address what has been referred to as the “silent crisis” underlying many refugee
situations.55 They have failed to satisfactorily embrace the logic of pro-active
migration management that would put greater emphasis on policies focused on
addressing the underlying root causes of forced migration rather than just being
primarily concerned with its consequences.56 So far, the track record of policies
that seek to address the political, economic, demographic, and environmental
problems that can lead to forced migration is far from impressive. Efforts
to encourage foreign investment, fair trade, well-managed debt burdens,
well-directed development aid, and effective reintegration programmes should
be part of a long-term strategy to reduce push factors for forced migration and
need to be given a higher priority.57
6. Conclusion
This article has argued that the effectiveness of policies in regulating migration
should not be overestimated. Migration flows are often shaped by push factors
that are often beyond the direct control of policy-makers in receiving countries.
This is particularly true in the area of forced migration when the choices
of migrants are often very limited and harder to influence through policies
54 Thielemann & Dewan, “The Myth of Free-Riding”, 351.
55 E. Piguet, P. Antoine & P. de Guchteneire, “Migration and Climate Change: An Overview”, Refugee Survey
Quarterly, 30(3), 2011, 21.
56 For a discussion of reactive versus pro-active policies in the area of forced migration, see Thielemann &
Dewan, “The Myth of Free-Riding”.
57 J. Crisp & D. Dessalegne, Refugee Protection and Migration Management: The Challenge for the UNHCR,
Working Paper No. 64, New Issues in Refugee Research, Geneva, UNHCR, Aug. 2002, 3�6.
36 Eiko R. Thielemann j National and EU Policies in Forced Migration
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than in other areas of migration. Migration and non-migration policies can have
a considerable impact on migration flows, but existing studies find little evidence
for differences in welfare regimes driving migrants’ choices of host country.
Policies, however, are only one of many pull factors that influence migration
flows. Historical, economic, geographic, and other structural pull factors can
have very powerful effects on migration flows and are often beyond the direct
control of policy-makers. Finally, it has been argued here that regional cooper-
ation and the establishment of common policies for displaced persons can raise
protection standards. However, policy harmonization comes at the expense of
States’ ability to use distinct national polices to counter-balance country-specific
structural pull factors. The reinforcement of highly inequitable distributions of
responsibilities for forced migrants might be an unintended consequence unless
states give more substance to an international refugee burden-sharing agenda.
However, there can be little doubt that, in principle, cooperation between States
at regional and international levels does offer scope policies that deliver a fairer
distribution of responsibilities and higher standards of protection for forced
migrants. If well designed, such collaboration can help States address collective
action problems and reconcile the tension between their control and protection
objectives.
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10/22/2018 Europe’s human rights court struggles to lay down the law – POLITICO
9,944 judgments of the European Court of Human Rights have not been implemented
by countries. Click on any bubble to see a breakdown of judgments still pending, by
country, supervision level and type of violation.
10/22/2018 Europe’s human rights court struggles to lay down the law – POLITICO
SOURCE: Department for the Execution of Judgments of the ECHR website
METHODOLOGY NOTE: This visualization is based on a database containing summaries of documents. To
avoid duplicates, cases with multiple violations were only counted as the first violation listed.
ž
ž
10/22/2018 Europe’s human rights court struggles to lay down the law – POLITICO
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