Yves Ballez, Ariadne Frangi, Thomas Ngeze and Dorien Surinx (master students Advanced Study Constitutional Law, Ghent University), Pieter Cannoot (assistant, Ghent University) and Juan Benjumea Moreno (assistant, Ghent University)

See Dutch version below

naamloosAccording to the UN refugee agency UNHCR the sad record of nearly 60 million forcibly displaced people has been reached. The conflicts in Syria, Iraq and Yemen have created a flow of refugees, which is more and more moving towards the EU. This influx obviously leads to significant challenges. International law after all dictates that states bear an important responsibility towards these refugees. Hence, the EU should also provide a powerful, common and effective answer to this crisis.

The presence of refugees in Europe has certainly got governments thinking, especially with regard to social rights. “Either open borders and coordinated migration or a closed social security system” N-VA chairman  Bart De Wever stated. Should the Geneva Convention indeed be updated? Can we tackle this problem structurally and on a European level, for example by guarding the external borders more severely and distributing asylum applications proportionally? Or should Belgium take its own precautions by implementing a separate social status for refugees?

Social rights for refugees

Government officials are worried that our social achievements could be compromised if the influx of  refugees  continues. Once recognized as a refugee “all doors would be open” and that person would enjoy the same social rights, under equal conditions, as Belgian citizens. On the international level, the legal basis for this right can be found in the Geneva Convention. Once having acquired the refugee status, people should enjoy the same social rights as citizens of the State in which they have acquired that status. The EU Qualification Directive also states that social services should be provided on the same basis as to the citizens of the receiving State. However, Belgium’s favourable social system – in comparison to those of other European countries, such as Italy and Greece – creates an “attracting effect”. Indeed, Member States still decide at the national level what the conditions for obtaining social benefits are and what those social benefits exactly contain. Social rights can therefore still vary depending on the Member State in which one has been recognized as a refugee. Refugees are aware of the situation that, because of the recent financial and economic crisis, in some countries, such as Italy and Greece, there are few prospects for the future. They therefore try to (illegally) travel towards those countries where social systems are most extensive.

Limits of social systems: separate social status as a solution?

The fundamental agreements made under the Geneva Convention are under pressure. The Convention does not appear to be properly adapted to the challenges of the current refugee crisis. This has therefore led to a debate on limiting or delaying the access to social rights for refugees. In Belgium, N-VA advocates a separate social status for refugees to prevent them from immediately benefiting from the social security system. A separate social status would stop the attracting effect. However, considering the above-mentioned equal treatment of refugees and national citizens, a separate social status violates international, European and national rules. The proposition to make the enjoyment of family allowances for refugees depend on the fulfilment of a certain waiting period, would amount to discrimination based on nationality. Additionally, not everyone agrees with the proposal. Other political parties, even the N-VA’s coalition partners, dissociate themselves from this point of view. Several arguments can indeed be brought forward against this proposition. The denial of an equal social status would, for instance, counteract integration. The gap between national citizens and refugees would widen with undeniable consequences. Subordination and discrimination could lead to frustration among refugees. Given the fact that the federal government just recently announced that the waiting period between the application for asylum and the access to the labour market will be shortened, implementing a separate and less favourable status therefore seems very paradoxical.

Belgium’s scope to create a separate social status for refugees is limited, due to its obligations on the international and European level. The proposition, made by N-VA, to implement a separate social status, is however in line with the shifting consensus on migration policy in Europe. As well as N-VA, the European People’s Party (EPP), of which CD&V is a member, asks for a radical reform of existing European asylum procedures, including an update of the Geneva Convention. The EPP’s resolution however does not provide any clarity as to the exact scope of that reform and how the Convention be adapted to modern needs. That it will be a long-term process, and not a solution for the current issues, is however emphasized. Theoretically speaking the Convention can certainly be subjected to modernisation in order to take into account new circumstances, for example the incorporation of climate refugees as a category of beneficiaries. However, the whole idea of a separate social status impinges the essence of the Convention, that is, to provide legal protection (including education, social security…) to people who are persecuted in their country of origin. A modification would erode the entire idea of protection, to which literature refers as opening Pandora’s box.  

Limited residence status for refugees as an intermediate stage?

A distinction has to be made between granting refugee status on the one hand, and the residence status after recognition on the other hand. The actual refugee status is not limited in time, and will exist as long as there is an actual risk of persecution. Granting refugee status depends on the situation in the country of origin and can only be lifted when this situation has sustainably changed. As regards residence status however, states are free to decide upon a limitation in time. The Qualification Directive only imposes a minimal duration of three years. Furthermore, there is no current obligation to make the residence status become permanent after a certain time. In December 2015 the federal government introduced a limited – but renewable – residence status of five years. Other European countries, like France, also have a limited residence status. According to the Commissioner-General for the refugees and stateless persons, Dirk Van den Bulck, granting a limited residence status may however implicitly lead to social rights being granted differently to refugees and national citizens. Limiting residence status does not provide the same assurance when it comes to establishment, social security, integration and labour participation in the Belgian society. A limited residence status thus does not offer favourable prospects for refugees to build their lives upon.

The demise of Dublin?

The Schengen Agreement in 1985 abolished customs control at internal borders between signatory countries and introduced the Schengen area. This zone is characterized by common external border controls and freedom of movement within its boundaries. The abolition of border controls within the Schengen area was offset by common rules on border surveillance and information sharing, and the establishment of the border agency Frontex, which provides operational support. Originating in 1990, but replaced by the Dublin Regulation in 2003, the Dublin Convention was drafted in order to prevent asylum seekers – once inside the Schengen area – being sent from one country to another, without being heard or obtaining protection, as well as to prevent 'asylum shopping'. The Regulation determines which Member State is responsible for examining an asylum request, based on a hierarchy of criteria. The Dublin Regulation introduced a rule of thumb, namely one application in one Member State. Usually, this leads to the Member State that allows the asylum seeker to cross the external border of the Schengen area being responsible. Every applicant should receive equal treatment when entering a Member State that is bound by the Regulation.

However, efforts made by the Member States do not appear to be sufficient. As a result, many asylum seekers can cross European external borders without border checks and travel immediately to a Member State of choice. Today, the Dublin system therefore fails to achieve its original purpose. The system appears to be both inefficient and inequitable. Asylum procedures have become long-winded, complex and uncertain. Furthermore, the poor functioning of the Dublin Regulation has led a number of Member States to violate human rights obligations. In early 2011, Belgium was condemned by the European Court of Human Rights for sending an asylum seeker back to Greece on the basis of the Dublin mechanism. In the case M.S.S. v. Belgium and Greece, the Afghan asylum seeker M.S.S. fled his country in 2008 to seek asylum in Europe. He came to Belgium traveling through Greece. Once sent back to Greece, M.S.S. experienced inhuman and degrading treatment in the local reception centre. Belgium was therefore convicted of violating article 3 ECHR, as the conditions of the Greek reception centres should have been known.

In the spring of 2016, the European Commission will present proposals as to how to reform the Dublin Regulation. An adjustment of the general rule that the Member State to which the applicant has the strongest link is responsible for processing the asylum application, will be proposed. Two options seem to be at hand. A first legal solution is the possibility for refugees to freely choose a Member State responsible for the asylum application. They would thus have the opportunity to choose their own destination within the European Union. In a report on border management of the EU and its effects on the human rights situation, the special rapporteur on the human rights of migrants proposes a reversal of "the present logic by allowing asylum seekers to register their asylum claims in the country of their choice within the European Union, while supporting the countries receiving asylum claims with proportionate and adequate financial and technical support". Another alternative consists of the mandatory distribution of refugees among the Member States, whereby no choice is left to the refugee. In September 2015, the European ministers of internal affairs have, under the emergency clause of Article 78, paragraph 3 TFEU, already approved a plan for the reallocation of 120,000 refugees. In the long term however, a real legislative initiative will be required. Nonetheless, an overall compromise between the Member States seems difficult, as Hungary and Slovakia have already announced to take legal action against compulsory quota. The EU will therefore have to rely on a qualified majority voting to force a breakthrough.

The refugee policy, a sinking ship?

Introducing a separate social status for refugees to foreclose our own social security could possibly mean the introduction of a second-class citizenship. It is not even possible: the prior amendment of an international convention and EU legislation would have to be implemented. A possible detour through  a temporary residence status is not appropriate. Whether or not the Geneva Convention will actually be subject to an update is doubtful: after all, things are usually not as bad as they first appear. Asylum seekers are often aware of the differences in protection, care and social services. They thus often opt to travel to countries where these standards are higher. This is sometimes labelled as "just walk into a country of choice" or "asylum shopping", but still, realism must be taken into account: rather than to overcome the effect with palliative measures, the cause should be thoroughly tackled. Finally, a sustainable and efficient solution should be employed: a thorough reform of the Dublin Regulation and a more integrated EU asylum policy, fair cooperation between Member States included.

 

Concise bibliography

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http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/communication_on_managing_the_refugee_crisis_en.pdf

COM(2015) 450 final

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/communication_on_managing_the_refugee_crisis_en.pdf

ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece, 30696/09.

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Smythies, V., Ramazzotti, L., “The Dublin Regulation: A Critical Examination of a Troubled System”, internationalrefugeelaw 2013, https://internationalrefugeelaw.wordpress.com/2013/08/26/the-dublin-regulation-a-critical-examination-of-a-troubled-system/.

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