A Short Analysis of the Refugee Crisis in the Context of Immigration Law Wikimedia Commons

Editor's Note: In this short interview with Professor Peter Rodrigues, author Jakub Ciesielczuk teases out an analysis of the current refugee crisis in the context of Immigration Law and European Law. Practical aspects such as coping with large numbers of migrants and legal frameworks including the Dublin Regulation and limitations of national migration policies, all provide the theoretical backdrop to this particularly accessible interview with a leading academic.

Peter Rodrigues is Professor of Immigration Law and Chairman of the Institute of Immigration Law of the University of Leiden, and former head of the Research and Documentation Department at the Anne Frank House (Amsterdam). Professor Rodrigues has published widely on migration and statelessness. He is a member of the Dutch Standing Committee of experts on international immigration, refugee and criminal law (Meijers Committee) and the Chairman of the Dutch Association for Migration Research. From April 1995 until September 2000 he acted as Commissioner of the Dutch Equal Treatment Commission.

Jakub Ciesielczuk: The first question is very general: How should the EU deal with such a huge influx of refugees, such as the one we are currently facing?

Professor Rodrigues: The fact is that the number of refugees makes it extremely difficult for host countries to deal with it properly. The huge amount of refugees who have just arrived in Europe or are on the way, can be classified as an exceptional situation, therefore some exceptional rules should apply. However, primarily every individual refugee case should be analysed separately. Despite the huge number of refugees, the host countries still need to pay attention to individuals who may pose a threat to national security or simply cannot be classify as asylum seekers.

JC: Do you think that the European Commission’s decision on emergency relocation of the refugees may trigger some conflicts within the EU, given that there is a strong disagreement between Member States concerning how to handle the refugee crisis?

Professor Rodrigues: I think that in light of the current crisis, the EU should face the situation with solidarity, given that it is one of its core principles. However, the fact that some Member States follow national migration policies rather than EU directives, has been happening since before the current crisis - Italy and Greece are examples. Unfortunately, many states seem to still seek to secure their national interests and policies rather than act collectively.

JC: Do you think that there is a strong conflict between the rule of sovereignty of the State and obligations under the EU law within the EU?

Professor Rodrigues: When the EU started focusing on migration policy in the context of the Treaty of Amsterdam in 1999, some human right lawyers feared that it would impose very strict regulations on Member States; we were aware of the delicate nature of these legal instruments. Nowadays we are in a position where European Law provides extensive protection for migrants, whereas many national legislation of Member States provide only very limited protection. Given the supremacy of European Law over national legislation such situation is unacceptable - Member States cannot simply lower certain agreed levels of protection for migrants. All the EU legal instruments regarding asylum policy, including EU Directives and Regulations, set up a minimum standard for dealing with migrants and that standard should be followed without exception everywhere within the EU.

JC: Do you think that the Dublin Regulation III, as a legal document regulating the flow of refugees, is efficient enough in coping with the current crisis?

Professor Rodrigues: Not at all. It was already not working properly before the current refuges crisis had even started. As we have seen in the judgment of the European Court of Human Rights in the case M.S.S in 2011[1] , the Dublin Regulation III is not applicable to Greece anymore. Moreover, there had previously been problems with the Dublin Regulation in Italy, Hungary and Malta.

JC: The Dublin Regulation provides that an asylum seeker has to apply for asylum in the first EU country they enter, and that same Member State is responsible for providing rights to that individual. However, there are politicians like Angela Merkel, who are explicitly inviting migrants to come to Germany, which seems to be in breach of the Dublin Regulation as it encourages migrants to travel across Europe and as a consequence it will in theory deprive the migrants of all rights. What do you think about that?

Professor Rodrigues: Indeed, that seems like a breach of regulation. However, at the same time politicians like Angela Merkel require solidarity and cooperation from all Member States and hope others will follow their approach. As I said before, the huge number of refugees is an exceptional situation and some exceptional measures should be taken.

JC: Do you think that any potential reform of the European Migration Policy is possible or desirable at the moment, and would it help in coping with the current crisis?

Professor Rodrigues: We have some relatively recent recast regulations like Qualification Directive 2011[2] and Dublin Regulation III 2013[3] and in my opinion it would be extremely hard to review these legal documents now because there would be no consensus as to how they should be amended. There is no certainty whether the States would opt for more extensive rights for migrants; on the contrary, some States could be willing to further limit current rights. In other words, political climate in Europe at the moment is not the best time for making any changes to migration policy. As we have seen in the decision of the Court of Justice of the European Union in the case MA v UK[4], proposals to amend the provisions of Dublin Regulation III, even those of very narrow scope such as those referring to unaccompanied minors, were rejected and opposed by States like Germany and the Netherlands. However, it is worth mentioning that the Temporary Protection Directive (2001/55/EC), which was created in 2001 following the uncoordinated response to the refugee crisis generated by conflict in the former Yugoslavia in the 1990s, seems to be an applicable solution to the current refugee crisis. Its purpose is to provide a framework and minimum standards for responses to the mass displacement of persons who are unable to return to their country of origin (for example, due to armed conflict).

JC: That was the last question. Many thanks for finding the time for the interview!

For further information, please consult:

[1] M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011

[2] Directive 2011/95/EU of European Parliament and of the Council

[3] Regulation (EU) No 604/2013 of the European Parliament and the Council

[4] MA, BT, DA v. Secretary of State for the Home Department , C-648/11, European Union: Court of Justice of the European Union, 6 June 2013