Print Commentary: The Need for Reform in European and American Refugee Policy

Editor's Note: This article, co-authored by Nora Salitan and Kelcie Gerson, is a legal commentary related to Nadia Almasalkhi's "Institutionalized Xenophobia: The Effects of an Electorate’s Prejudice on Swiss Institutions" in our Fall 2017 issue. We encourage readers interested in more information to refer to our print journal for unabridged legal analysis.

In the summer of 2017, the number of displaced people in the world, more than 66 million, hit a record high.[1] Most refugees, about two thirds, are internally displaced peoples (IDP). The other third are no longer in their country of origin and are seeking refuge. Of those approximately 22 million refugees who were forced to leave their home countries due to civil war, natural disasters, or a myriad of other causes, somewhere between 2.8 and 3.2 million are currently seeking asylum.[2][3] As defined by the 1951 UN Convention on the State of Refugees, an asylum seeker is a person trying to gain legal residence in a new country due to “a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group.”[4]

Because of geographic proximity, the majority of those approximately three million asylum seekers end up filing asylum claims in Europe, while others relocate to the United States. Though there are internationally recognized definitions of what an asylum seeker is and who is entitled to receive this status, each country has its own asylum application processing system. Because variation in these systems can drastically change the experience of a refugee and result in gross human rights violations, there is a strong need for collective reform and international standardization of asylum processing systems.

In 2015, the most recent year with available data, 26,124 people were granted asylum in the United States, a 12% increase from 2012.[5] The magnitude of the global migrant crisis dwarves these numbers. Even more problematically, the U.S. courts are chronically backlogged. In 2016, there were more than 620,000 pending removal and asylum cases. Newly arrived refugees may have to wait up to six years to have their cases fully processed.[6] Because of this massive backlog and the exponentially increasing demand, the United States fails to meet intended quotas. In response to this unprecedented increase in applications, the Obama administration expanded the number of refugees (including asylum seekers) allowed to receive residence in the country from 85,000 in 2016 to 110,000 in 2017. When President Trump took office, he attempted to suspend the refugee resettlement program and cut the admission ceiling from 110,000 to 50,000. 42,000 refugees have been settled in the United States thus far this fiscal year (2017). [7] The United States needs to, at minimum, revert to the 110,000 quota President Obama mandated and hire more professional caseworkers to process asylum applications.

In 2015, European countries granted asylum to 292,540 asylum seekers, out of the 1,321,560 claims that were filed. The majority of those claims were accepted by Germany who took 140,910 refugees. Sweden, Italy and France each took about the same number of people as did the United States.[8] Due to the variation of European admission policy, with some taking the majority of applicants and others taking fewer than one percent, asylum seekers entering the EU often practice something that is colloquially known as “asylum shopping.” Asylum shopping is when an asylum seeker enters through one country, typically Turkey or Greece, and then travels via land to a country with more favorable acceptance prospects. “Asylum seekers have no legal duty to claim asylum in the first European Union state they reach, and many move on, seeking to join relatives or friends for support, or to reach a country with a functioning asylum system.” [9] The Dublin Regulation, however, allows EU member states to return asylum seekers to their country of first entry to process their asylum claim, as long as that country has an effective asylum system. The Dublin regulation caused major problems, most notably in a landmark case called ECtHR - M.S.S. v. Belgium and Greece (2011). The European Court of Human Rights found Belgium in violation of the Europe’s Convention on Human Rights after Belgium used the Dublin Regulation to return an Afghan national to Greece; the man was subsequently detained in inadequate conditions. Belgium and Greece were found in violation of the law and the UN High Commissioner for Refugees declared that Dublin Rule often impedes the legal rights of asylum seekers by exposing them to poor living conditions and inconsistent application review. Nonetheless, the European Court of Justice upheld the Dublin Regulation in 2017.[10]

Another system that has caused controversy is Europe’s “hotspot” method of dealing with high influx in asylum application. The CEAS (Central European Asylum System) established hotspots in Italy and Greece which are where the majority of refugees enter. By having so many refugees detained in two countries, massive human rights violations occur at the detention centers.

“More than 16,000 asylum seekers and migrants staying in the islands’ hotspots face appalling detention and reception conditions, including severe overcrowding, significant shortages of basic shelter and unsanitary, unhygienic conditions. Women, children and people with disabilities are particularly affected. Fights occurred on a frequent basis, particularly in the food lines, at times with no police intervention, while women and girls were exposed to sexual harassment and violence.” [11]

Despite a plethora of litigation undertaken by NGOs, international bodies and even nations, abuse in the management of asylum seekers remains rampant in Europe.

The United States also has immense problems with the detention of asylum seekers, often detaining them in condition found to violate international human rights laws. “Each year, an estimated 352,850 people are detained across the United States.” [12] The number of asylum seekers in detention has increased threefold since 2010. Multiple organizations, the UNHCR and Human Rights First and Amnesty International to name a few, found American immigration detention facilities in violation of domestic human rights law. Human Rights First’s Olga Byrne said:

"By holding asylum seekers in United States immigration detention facilities unnecessarily, and failing to effectively implement existing parole policies and reasonable bond practices, the United States is violating its own human rights and refugee protection obligations. The United States should be leading by example in demonstrating its commitment to refugees and asylum seekers, rather than responding with detention and deterrence."

Another problem unique to the United States is for-profit immigrant detention centers. A new investigation by Penn State Law’s Center for Immigrant rights shows the horrific conditions in privatized, for-profit immigrant detention centers in the United States. The report focused on two detention centers in Georgia. [13] “Migrants fleeing violence and poverty, some of whom have unsuccessfully tried to apply for asylum, are forced to eat rotten food and drink contaminated water. They endure arbitrary solitary confinement, have little or no access to medical care and are denied their rights to legal counsel.” [14] In a nation with access to revenue that can remedy these issues, these kinds of abuses should not be occuring. The US government must reform its asylum processing system.

Clearly, there are systemic flaws in both the United States’ and Europe. In Europe, asylum seekers have the possibility of being processed in a more favorable country like Germany or they could also be sent back to their port of entry via the Dubin rule and be detained indefinitely. In the United States, asylum seekers almost universally are forced to endure terrible detention conditions, lack of access to legal aid, and massive backlog. Both the United systems must be standardized and reformed.