Surveillance and the 2015-16 refugee crisis in Europe

Refugees arrive in boats on European shores. Ben White/ CAFOD. Flickr. Some rights reserved.The images
of refugees fleeing war zones and seeking any means to enter territories
more stable than where they came from accompany violent conflicts wherever they
take place in the world. The images of refugees fleeing to Europe from the
regional war in Syria and Iraq have been particularly poignant in 2015.

The stories of the paths of
flight, across Turkey, over the Aegean sea to a Greek island, from the island
to the Greek mainland, from there to the Macedonian border and then across
Macedonia and Serbia into Austria, possibly passing through Hungary, Croatia
and Slovenia are extraordinary. People have been reaching for maps of Europe to
figure out what is going on. Everyone is concerned and anxious about the fate
of the refugees, but policy makers in a number of Europe’s states have also
been concerned about the consequences of arrivals of substantial numbers of
refugees in their country. They have been shamed by the German response of
welcome. In some cases, policy makers and media in a few member states seek
proof that the German welcoming response was a mistake.

“Another Schengen state”

One of the most startling and
unanticipated outcomes of the rather erratic way in which refugees have been
moving across the European continent has been new stresses on the Schengen free
travel area comprised of 26 states, mainly Member States of the European Union
(except Bulgaria, Croatia, Cyprus, Ireland and the UK) but with a few EFTA
states (Iceland, Liechtenstein, Norway and Sweden). Among these states no
border controls on the movement of persons is permitted except under very
exceptional and regulated circumstances. Yet, eight Schengen states (Germany, Austria,
Slovenia, Sweden, Norway, Denmark, Malta and France) reintroduced limited
border controls starting with the Germans on 13 September 2015. One state has
lifted those controls, and an EFTA state, Norway has introduced a few controls.
With the exception of France the controls are limited to very specific border
crossing points. Rather surprising in the list of countries are so many Nordic
ones – far from the Turkish or Libyan borders – apparently the century old
Nordic Union is crumbling under the pressure of Europe.

The rules of the
Schengen area require any state seeking to reintroduce border controls with
another one to give reasons for this. According to the first notification of
the reintroduction of intra-Schengen border controls made by the German
authorities on 13 September 2015 the reason for this extraordinary measure was:
“In view of the uncontrolled and unmanageable influx of third-country nationals
into German territory…” (Council Document 11986/15).

This language was repeated in the
notification of extension of the controls at a handful of border crossing
points with Austria on 22 September, again on 12 October when the wording had
moved to “uncontrolled and massive influx…”

In the detailed justification
requested by the Commission, the German Minister replied on 29 October, “I
would also like to reiterate that the situation in Germany mainly depends on
the measures taken by the responsible Member States to protect the EU’s
external borders…transit countries within the Schengen area seem to be unable
or unwilling to take the measures required by EU legislation to register and
check each and every migrant.” (Council Document 13569/15).

The justifications given by the
other Schengen states for reintroducing border controls mirror the German ones.
The Austrians speak of a “massive influx” which is not their responsibility.
(Council Document 13127/15). The Swedes mentioned “unprecedented migratory
pressure” (Council Document 14047/15). The Norwegians were concerned about
“unpredictable migratory pressure” (Council Document 14633/15). The Danes
complain of “unprecedented migration pressure”: the Maltese the global terror
threat, and the French their state of emergency.

One aspect common throughout most
of the justifications for border controls is the massive, unpredictable
movement of third country nationals into and across their states. The constant
complaint is that some other state should be responsible for these people.
Someone should be registering them and taking responsibility and that someone
is another Schengen State, not the one where the third country nationals have
arrived. The call is one for more and better surveillance of third country
nationals entering the EU.

Calling for surveillance

But this is a very selective call
for surveillance. FRONTEX, the EU’s external border agency, has stated that the
EU welcomes over 320 million third country nationals a year who are subject to
border checks to determine their eligibility to enter the EU. Each year only
about 150,000 people are refused entry at the EU’s external border. Those 320
million third country nationals who enter the EU every year can travel freely
around the Schengen area, only ever encountering one checking on entering the
area and one on leaving. That check, according to FRONTEX, takes an average of
12 seconds. They can stay for three months as tourists.

According to FRONTEX’s report on 20
January 2016, in the third quarter of 2015 (the period of the most frenzied
media pictures of refugees fleeing across the continent) 405,131 people applied
for asylum in the whole of the EU. This was a substantial increase from the
second quarter which saw 210,932 asylum applications. But it is perhaps not the
massive unpredictable influx claimed. Further, in comparison with the normal
massive uncontrollable influx of 320 million third country nationals annually
it does not seem too large.

The question must then be asked,
if the EU can deal with 320 million third country nationals every year without
any crisis and immigration officials, according to FRONTEX needing only 12
seconds to make a decision on their entry, why do we have a crisis over 405,131
asylum arrivals in the third quarter of 2015?

Objects of surveillance

Syrian refugees cross into Hungary underneath the Hungary–Serbia border fence, 25 August 2015. Wikicommons/Gémes Sándor/SzomSzed. Some rights reserved.The pictures
are heart-rending. Notwithstanding claims that the vast majority of the
arrivals are young men, according to UNCHR’s statistical yearbook 2014 the
demographic make-up of refugees in Germany was 41% women and in Switzerland
44%. UNHCR did not have figures for the UK. In Germany and Sweden officials are
concerned that refugees who have arrived recently in those countries will be
seeking family reunification quickly with loved ones left behind in Syria,
Turkey or elsewhere. If these applications are dealt with expeditiously then
the percentage of women in the refugee population is likely to rise quickly and
possibly overtake that of men.

Refugees generally cannot arrive
in Europe in the same way that tourists do. Virtually all of the top five
asylum producing countries for the EU are on the visa black list (the exception
is Albania). These are: Syria, Afghanistan, Iraq, Albania and Pakistan
(according to FRONTEX 20 January 2015). There are EU and/or national sanctions
on carriers such as airlines and ferry companies of €5,000 at least for each
passenger they bring to the EU without proper documentation (including a valid
passport and visa). There are no EU delegations open in Syria which issue
visas. There are no EU delegations open in Syria
which issue visas.  So instead of
paying the €30 which EU citizens hand over for a day trip from the Turkish
coast to the Greek islands or the other way around, Syrians have to pay
smugglers according to latest calculations more than US$ 1,000 per person for a
dangerous and sometimes fatal trip. This is simply because no authorised
carrier will accept refugees without passports or visas or both.

The consequence is that instead
of refugees arriving in a safe and well-organised manner on ferries or flights
to ports or airports where there are immigration officials available, and infrastructure
such as trains and buses into cities etc., they arrive unexpectedly on strange
islands with little or no infrastructure to assist them. As, by and large, they
want to be somewhere else other than on a Greek island, they then take tortuous
routes through the Balkans, often at further physical risk to arrive where they
want to seek international protection. These routes are usually not the normal
ones – trains and flights – but include numerous trips across borders on foot,
using buses dragooned in by local authorities to ensure that the refugees keep
moving. Some authorities have established obstacles of all kinds which only
contribute to the irregularity and uncertainty of the places of arrival. They could be treated
as special guests who bring their own resources both financial and
professional.

The anxiety expressed by EU
governments which have reintroduced a limited number of border controls within
the Schengen area that there are uncontrolled and massive influxes of refugees
(or migrants if they are using that term) is the result of their own actions.
These refugees would arrive regularly and with much more money in their pockets
to help them settle (often temporarily until they can go home) in their new
refuge if they could catch a flight to their host destination. They would also
then arrive directly in the country where they wish to seek asylum. Instead of
forcing refugees to suffer the insult of submitting to smugglers and then
treating them all as destitute and objects of complete control (housing in
collective reception centres, often in former barracks, collective food
provision etc.) they could be treated as special guests who bring their own
resources both financial and professional. Perhaps they do not need to be treated exclusively as
objects of surveillance and registration but as people ready to make a
contribution to Europe who should be offered the opportunity.

Poles get it right

There is an excellent example of
just such an approach to substantial numbers of persons arriving and needing refuge
in Europe: the Polish response to the arrival of over 1 million Ukrainians over
the past three years. Instead of forcing them into the asylum procedure, the
Polish authorities, according to the EU statistical agency EUROSTAT, have
issued more than 100,000 work and residence permits to Ukrainians over each of
the preceding three years. The Czech authorities appear to have followed a
similar approach, though the numbers are substantially lower.

If one remembers the fears of
mass influxes from earlier periods – the 2007 accession of Bulgaria and Romania
to the EU, the lifting of work restrictions on Bulgarian and Romanian workers
on 1 January 2014 and so forth, the reality never reflected the nightmare
scenarios sold by the purveyors of fear.

Perhaps we should have more
confidence in people, both our own and those in need of international
protection and contemplate how best to provide them with durable protection for
as long as they need it before hostilities in their own countries cease and
they can return home with dignity. It may be something of a surprise to reflect
on the good example which the Polish authorities have provided to the rest of
the EU.

This article is published in association with the Criminal Justice Centre at the Department of Law, Queen Mary University of London. The CJC’s members are drawn from both the legal profession and academia, researching the impact of securitisation on human rights. The Centre is one of the coordinating institutions of the European Criminal Academic Network.