Nadine El-Enany

Refugee protection as a collective action problem: is the EU shirking its responsibilities?

Abstract Refugee protection efforts have been shown to suffer from substantial collective action problems due to the capacity of restrictive policy measures adopted by one region as a means of shifting refugee responsibilities to other regions. Such responsibility-shifting dynamics have been identified between north and south as well as within these regions. European Union (EU) cooperation on asylum and refugee policies has been criticised for facilitating the adoption of restrictive policy measures and the creation of a ‘Fortress Europe’. Fears about the hollowing out of refugee standards have been coupled with concerns about the EUs free-riding on the refugee protection efforts of countries outside the EU. This paper shows that overcoming collective action problems between the Member States has indeed been a key motivation for EU cooperation in this area. However, a comparative analysis of EU asylum laws and refugee protection efforts with those of similar developed countries outside the EU leads to the rejection of some of the assumptions and implications of the ‘Fortress Europe’ thesis. While there is evidence of north/south burden-shirking and substantial room for improvement in the EUs asylum and refugee regimes, comparative legal research and the analysis of available UNHCR data on other OECD countries suggests that there is no evidence to support the claim that European cooperation has led to uniquely restrictive refugee policies and protection outcomes.

On pragmatism and legal idolatry: fortress Europe and the desertion of the refugee

This article adopts a critical approach in analysing restriction as a response to the refugee in policy and legal scholarship. eu migration policy hinders territorial access and poses methodological and epistemological challenges to progressively minded policy-makers and researchers. Contesting migration control means, crudely, arguing for removing restrictions or accepting them and advocating incremental protection improvements. This choice creates three conditions resulting in the refugee’s desertion. First, “legal idolisers”, who cling to protective laws, overlooking their exclusive function and second, “pragmatist-realists”, who argue a realist approach to restriction is necessary to further protection. Consequently, the field becomes vulnerable to opportunistic research designed to be palatable to policy-makers. This creates, thirdly, a sinking ship for those arguing for the removal of restrictions. Mainstream scholarship and public debate paint migration control critics as adopting a “cuddle policy” towards “illegals” and abstract the migration discourse from structures of domination and questions of historical injustice.

‘Innocence Charged with Guilt’: The Criminalisation of Protest from Peterloo to Millbank

The British state has a long history of attempting to control what can be said and done by way of political protest. Until the late 1700s and early 1800s, its method of limiting free speech, in particular that against the state or Church, entailed prosecutions under libel law, in particular the law of seditious libel. By the late eighteenth century it was becoming increasingly unacceptable to limit what could be said in the form of political dissent, and yet the state needed to find a way of retaining its hold on power in the face of political opposition, particularly the sort which manifested itself in the congregation of large crowds of people at rallies or on marches, which caused great apprehension to the local authorities (Lobban, 1990). Prosecutions for expressions of political opinion were becoming increasingly difficult by the early nineteenth century, which was nevertheless a time of political upheaval. The content of what people published and what they said at public meetings and rallies frequently fell outside the scope of libel laws and thus the state had to find another way to deal with dissent, which it believed remained a threat to the authorities and the apportionment of power in society. It was the Peterloo Massacre of 16 August 1819, and in particular the trials which followed, which paved the way for the use of public order offences against protesters.

The perils of differentiated integration in the field of asylum

This chapter examines the level of differentiated integration and its consequences in relation to asylum matters in the EU, focusing in particular on the position of the UK. It identifies a distinction between ‘formal differentiation’ and ‘informal flexibility’. Formal differentiation includes the official agreements concluded with the UK, Ireland and Denmark allowing these countries to participate or not to participate in asylum measures to pre-determined degrees. Informal flexibility results from uneven or mal-implementation, which is to some extent tolerated by the EU Institutions. This chapter argues that at the heart of a harmonisation project is the necessity for the limitation of the discretion of participating Member States to legislate differently in a specific area, and this is particularly important with regard to the EU’s asylum project because of the persistence of the Dublin Regulation’s ‘one chance of asylum’ rule. Asylum is not only a field which directly affects the lives of vulnerable individuals, but is heavily regulated by international and human rights norms. It is therefore questionable whether there should be any provision for formal flexibility arrangements. Under current arrangements the UK is in practice permitted to cherry-pick in a highly selective manner, participating in the Dublin system for instance, but refusing to be bound by the legally enforceable minimum standards legislation which arguably comprise one of the few safeguards attached to the Dublin system. Furthermore, the widespread uneven implementation across the EU among Member States bound by the asylum directives constitutes a high level of informal flexibility, putting in jeopardy the protection of asylum seekers. This tension puts a question mark over the extent to which the project of harmonisation of asylum systems can sustain both the existing formal differentiation arrangements and informal flexibility.