Abstract
Persecution, conflict and poverty forced over a million people to flee to Europe in 2015 and the following years. For the first time after the Second World War, Europe has had to face a so-called migration crisis. This article explores the “anatomy of scale” and its relevance to the existing regimes of international protection for aliens. The application of existing international and EU standards to the “refugees from war” is analyzed, together with issues such as the type of protection granted to these persons and the scope of the principle of non-refoulement and non-rejection at the frontier. The article argues that the system of assessing requests for protection and singling out eligible persons does not work properly in a situation of people coming en masse. This, in fact, technical and practical problem has challenged the whole system and put its underlying principles in question. The article further argues that the temporary protection mechanism is (and will continue to be) a “dead letter” because of lack of solidarity and unanimity. Moreover, it is very difficult to achieve two goals at the same time; that is, to process large numbers of claims for refugee and subsidiary protection and maintain the Dublin Regulation. The article concludes that because mass influx migrations are caused by general factors (usually armed conflict, other internal clashes; in the future probably also natural and humanitarian disasters), a fundamental issue will be to assess the general situation in the country of origin in a coherent and uniform manner. It is recommended that domestic bodies should be given more guidance through legislation or jurisprudence and that the “sliding scale” test, as well as the concept of “sufficient intensity” of general violence and “most extreme cases”, should be further elaborated. Keywords: migration crisis, Europe, refugee law, human rights law
Highlights
Individual states used to have an almost unlimited power to organize the rules and procedures for admitting aliens to their territory
In the last decades this sphere of state autonomy has been limited through international standards of refugee and human rights law
We speak about second phase Common European Asylum System (CEAS) legislation, which consists of several legislative instruments2
Summary
Individual states used to have an almost unlimited power to organize the rules and procedures for admitting aliens to their territory. Even if we apply the interpretation of an “armed conflict” and a requirement of the individualization of risk (valid in the extreme situation of generalized violence in the country of origin12) suggested by the European Court of Justice (CJEU) with respect to the provisions of the Qualification Directive, it is clear that Article 2(d) of the Temporary Protection Directive will anyway cover all persons fleeing from war or other similar violence This point will be discussed later in more detail. Turkey is a party to the European Convention on Human Rights (ECHR), and should follow the minimum standards as highlighted in the case-law of the European Court of Human Rights (ECtHR)32 Another issue that requires consideration is the legality of measures undertaken at sea, or more generally, a question of how far individual States (or the EU as a whole) could go in restricting entry of aliens into their territory. The InternAmerican Commission found that returning asylum-seekers, intercepted on the high seas, to their country of origin, suffered a violation of their right to seek asylum in a foreign country
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