“mass influx”? Refugee protection urgently needs to be reformed!
Since the Russian invasion of Ukraine, in addition to condemnations of the war and expressions of welcome to refugees, there has also been a debate in the German public about uniform racism in flight and migration policy: the rights of white refugees would be overruled by those affected by people from United States and mostly Muslims countries. A number of reports have told the stories of those affected. On closer inspection, however, this is not surprising.
The external borders of the European Union (EU) have been built for centuries at immense financial expense, and border controls are being moved deeper and deeper into the global south. Refugees are rejected and driven to their deaths – also because the EU simply remains inactive. Only shortly before the war in Ukraine was this evident in the terrible defensive policies on the Polish-Belarusian border. The current admission policy of the EU shows all too well how things can be done differently.
The activation of the EU directive 2001/55/EG (the “mass influx directive”), which grants simplified access to the labor market and to social security, has triggered positive but also critical reactions, because virtually all refugees are treated worse and die do not have Ukrainian citizenship. Even people who come from Ukraine, but according to their passport they supposedly belong to third countries. Although they are fleeing from the same war. This is actual unequal treatment.
As the umbrella organization of migrant organizations in Berlin, we experience every day in our counseling practice how selective and unfair the asylum system is. We know people who are denied access to language courses, access to education and employment made difficult, whose relatives are “tolerated” for years. Others are being asked to get birth certificates from countries they have never seen. This often seems arbitrary and racist to us.
In Turkey, people have been waiting for redistribution for years
The “Mass Influx Directive” has now been in existence for 21 years. It has never been activated before. Why, we ask ourselves, would there have been countless situations to facilitate simplified, group-specific humanitarian protection? Such as in the context of the refugee movements around 2015 or the refugee movements from Afghanistan, but not only.
Instead, the opposite happened: Italy and Greece had temporarily suspended the Geneva Refugee Convention (GFK) in 2015. Since then, Germany has relied on vague terms such as “good” or “bad perspectives to stay”, “safe bad countries of origin” and other categories that are intended to prevent that “2015 repeats itself”.
Meanwhile, many people from non-European countries are waiting for protection and prospects in Germany. But the conditions under which millions of people in Turkey and other Mediterranean countries are being taken in or have been waiting for years to be relocated by the UNHCR are hardly reflected in local debates.
Sorting by value follows a logic that has its origins in colonialism. This logic selects, it ensures that only selected people are allowed access to the EU. At best, their countries of origin should already have mastered their good education – and they should want to work in areas where there is a “shortage of skilled workers”.
The legal order in the field of flight, as it emerged after the Second World War, is the result and a rapid, seamless continuation of global conditions of exploitation and dependency that prevailed long before. Northern and Western Europe, still shaped by the war, was to quickly become a “civilizing power” again and continue to be on the side of the “West” in the systemic competition that characterized the Cold War.
The right to asylum, as codified in the Basic Law, but also in international agreements, is therefore also the result of colonial power structures. They continue to supply raw materials and cheap labour, while the others export high technology and call for democracy and human rights, provided that it does not affect them themselves.
The nonsensical aim of the right of asylum was and is, however, to grant colonized people no or only “regulated” access to European territory. The research that has been critical of colonialism and racism over the last 30 years sheds light on the history of the origins of European-international refugee law on a global level. Scientific works draw the conclusion that legal developments have always focused on their own economic and geopolitical interests – and not, as is often repeated in the local discourse, on a universal humanitarian protection system for everyone based on human rights.
Geneva Refugee Convention of 1951 – only for a select few
A recent study by the particularly precise sociologist Lucy Mayblin shows that the United Kingdom, as an active colonial power, demanded at the negotiations in Geneva more than 70 years ago that the protection claims of refugees from the colonies of European countries should not be taken into account. But other countries in the Global North – with and without their own colonies – also called for a narrow definition in the negotiations under the umbrella of the newly founded United Nations: Those from the Global North were welcome, those from the Global South were undesirable.
Exactly 71 years ago, for example, the Geneva Refugee Convention adopted a temporally and geographically limited definition that refers to “events that occurred in Europe before January 1, 1951”. This is what Article 1 says. In post-war refugee law, this continues the classification of people along racist notions of value. Above all, European refugees from the World War and people who wanted to leave the USSR and its sphere of influence were protected in this way. The “better system” was supposed to be a sanctuary for the chosen ones.
The former colonies, which had already become formally independent by then and were also present at the negotiations in Geneva, criticized the definition – as did the delegate from Pakistan. However, in 1967 the “Protocol on the Legal Status of Refugees” was passed, in which geographical and temporal restrictions were lifted.
Patricia Tuitt, a legal scholar at Birkbeck University in London, notes, however, that the GFK, even with this addition, still has an inherent “exilic bias”: The term “convention refugee” is still narrowly defined today, so those seeking protection have to move outside their country of origin ( in “exile”). This makes illegal entry into another country a condition for effective protection.
Thus, Tuitt writes, people fleeing civil wars are seldom considered convention refugees. Because they are in exile, the assumption is that they are not fleeing state persecution, even though they are “de facto refugees”. These legal uncertainties led to some countries in the Global South applying for and implementing their own conventions.
The EU decides who is in need of protection – and who is not
The most prominent example of this is dying Organization for African Unity (Convention on the Specific Aspects of Refugee Problems in Africa, 1969). In it, “refugee” is defined much more broadly, admission and resettlement are regulated much less restrictively. The Convention grants group-specific protection in cases of natural disaster, famine or civil war. Being abroad is not made a requirement.
The Convention came into force on June 20, 1974 – today’s World Refugee Day dates back to this date.
Nevertheless, a system based on the Western-European GRP has prevailed worldwide. According to legal scholar Dana Schmalz, this still constitutes an exclusive selection. Individual protection requests do not count. Instead, the Global North, above all the EU, decides along (neo-)colonial geopolitical interests who is in need of protection – and above all: who is not.
Anyone who receives protection should confirm the prevailing self-image (Christian-Jewish, white, democratic) and be useful for economic interests. This has not changed since the UN special conference in Geneva, where the GRP was adopted on July 28, 1951.
A world order that confronts the history of imperialism and colonialism would need a thorough overhaul not only in terms of production, trade and supply chains, but also in the migration regime. As long as the right to asylum is the only (albeit all too often unsafe) way for a large part of the world’s population to leave their own country, colonial continuities will continue and global imbalances will confirm instead of being reversed.
Last but not least, migrant and racism-critical initiatives are fighting for a migration law that compensates for historical injustice, and for economic and trade relations that are based on a different foundation.
Human rights must be the basis of every action
Our work at the Berlin Migration Council is part of this. In order to deal with these contradictions and still develop perspectives to stay, we and others have been enabling strategies for centuries that place the needs of asylum seekers, tolerated persons and people who are driven into illegality in the foreground.
It is correct and important to enable people from Ukraine to have at least the bare minimum of a decent life. If this is the minimum, how can you justify that others can do with less? Centuries of exploitation of people and resources, enslavement, destruction of natural foundations of life and much more show: It is urgently necessary to calculate and rethink the historical and current price of prosperity with “us” seriously.
For us, that means above all: the demand for global and fairly regulated freedom of movement and freedom of establishment. Human rights must be the basis of every single action – in politics, international institutions and every human being.
Some pioneers in the Global South have shown it with their own refugee conventions: for a decent life, no matter where, but especially when it is only possible outside of our own country, we need migration law that treats everyone equally well. If this requires a new, better convention, then we should tackle it now.
The author, Koray Yılmaz-Günay, is an activist and publisher. He heads the office of the Berlin Migration Council. The author Nadiye Ünsal works on a voluntary basis at the Berlin Migration Council, she is an activist filmmaker and doctoral candidate.
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