Home

Berfin Nur Osso

Doctoral candidate at the University of Helsinki, Faculty of Law. LL.B. and Minor degree in International Relations (Koç University, Istanbul), MSocSc in International Relations and Political Science (Tampere University, Finland)

Socio-Legal Research on Externalisation?

Refugees (including asylum seekers) often encounter barriers that prevent or restrict their movement before, whilst, or after reaching EU territory. One of the most contemporary specimens embodying manifold forms of borders in the EU context, the EU-Turkey Statement of 18 March 2016, ensued in reaction to the 2015 migration phenomenon. This Statement exacerbated a growing trend in the EU since the establishment of a common asylum system in the 1990s: externalisation of migration management. With externalisation, the EU attempts contain refugees in the spaces of exclusion at its external borders (e.g., Greek hotspots) and ultimately in refugees’ home countries or in third countries (such as Turkey). This materializes with the expulsion of ‘undesired’ refugees from EU territory and its asylum system towards these countries. Externalisation thereby also suppresses refugees’ voices in claiming asylum and enjoying human rights in destination states. Thus, it manages refugees’ ‘access to right to have rights’, namely their access to state territory, asylum (including procedures), and the spaces within which they can enjoy their human rights.

In this contribution, I reflect on the methodology of my doctoral research project that explores the interplay between externalisation and refugee struggles in regaining their ‘right to have rights’ despite externalisation. The interplay I ponder in my project enables to expose the perspectives of both states and refugees as part of the mutually-constitutive externalisation process. To make sense of externalisation, we need to understand how externalisation laws are produced and used in reaction to refugee mobility, and how refugees challenge externalisation laws and practices with their political agency. This demonstrates externalisation as a constantly evolving process within which borders continuously rejuvenate and challenge refugee struggles.

The proliferation of externalisation since the early 1990s in the EU has proliferated scientific research on its impact on refugees and their rights. Externalisation in the Greek-Turkish external border has received considerable attention, notably since the launch of the EU-Turkey Statement. The academic background of these researchers varies within law and other social sciences. Nevertheless, shortcomings exist in legal research that concurrently conducts legal analysis, draws on the methods beyond ‘traditional’ legal approaches, and engages in theoretical and philosophical discussions. Much of the currently available research that focuses on externalisation perceives refugees as the nemeses or the victims of externalisation laws and practices. Conversely, a growing body of research in critical (border) studies investigates externalisation also from the perspective of refugees and focuses on harkening refugees’ voices (see e.g., Fiske, 2016; Thomaz, 2018; Üstübici, 2018; Catalani, 2019; Martiniello, 2022). Hence, there is an urgent need in legal research to address the link between externalisation and refugee struggles by bridging the distinction between the law in the books and the law in its social and political context. While the doctrinal approach falls short of explaining this phenomenon with its own ‘methods’, a theoretically informed and empirically oriented multidisciplinary approach is essential. In this sense, socio-legal studies provides ample grounds for conducting theoretical and empirical research on externalisation.

Amalgamating Texts and Refugee Artworks within Empirical Socio-Legal Research

Addressing the shortcomings in legal research on externalisation, my doctoral project merges a sophisticated theoretical framework with empirical data using qualitative approaches. I engage in empirical analyses drawing on textual and (visual) ethnographic data in the context of the Greek hotspots and Turkey as part of EU’s southern external border. I interpret the research data by developing a theoretical and conceptual framework that combines perspectives from legal theory and critical border studies (e.g., Arendt, 1973, 1998; De Genova, 2017; Huysmans et al., 2006).

The project encompasses three main methodological components: (1) a qualitative content analysis (QCA) of legal documentation; (2) a QCA of non-legal documents; and (3) a visual ethnography and QCA of refugee artworks. First, I aim to unveil how certain concepts, principles, and rules (such as the safe third country concept) are produced in EU law for externalising asylum, and how they are used in practice. In this sense, I analyse the content of legal documentation (legal norms and rules) and non-legal documentation (e.g., policy documents, reports of relevant government agencies, international organizations, and NGOs) through qualitative content analysis. I expose how externalisation laws and their implementation produce certain categories of individuals to manage their access to EU territory, asylum, and rights within designated spaces (such as the Greek hotspots and Turkey).

Second, I seek to reveal how the implementation of these concepts, principles, and rules is perceived and experienced by refugees. I dwell on visual ethnography as a method for collecting first-hand data from the field. In this sense, I analyse the paintings created by the refugees hosted by the Hope Project Greece in the island of Lesvos. To make sense of refugees’ experiences of borders, I attend to the patterns that reflect in the refugees’ artworks their struggles to subvert borders buttressed by externalisation. Utilizing the data I obtain from legal and non-legal documents and refugee artworks, I engage in theoretical reflections on the interplay between externalisation and refugees’ self-emancipatory struggles through political agency. I write up the research findings into four peer-reviewed articles.

Conclusion

Externalisation scholarship is vast, and this phenomenon is largely investigated. What is underinvestigated, particularly in legal studies, is the juxtaposition of the perspectives of states and refugees. The overarching aim of this research project is shedding light on how externalisation in the EU context produces border regimes as the zones of contestation between EU and Member States and refugees. This contestation transpires between the attempts of EU and Member States to control and manage refugee mobility and refugees’ struggles to overcome such attempts. Through investigating the paintings created by artmaking refugees in the Greek Lesvos Island alongside textual data, the research enables bridging the gap between creative imagination and the law. The enriched insights provided with the amalgamation of the analyses of legal and non-legal texts and refugee artworks help us understand the blind spots of EU asylum law and its externalisation. In this sense, socio-legal research elucidates externalisation in its social and political context.

Image by, and with consent of, Nazgol Golmuradi, Hope Project Greece

Ms Jannicke Martin, Candidate, LLM in Human Rights Law 2021/22, winner of the EU Asylum and Immigration Law Prize 2022, University of Edinburgh

Introduction

Faced with the reality of mass arrivals of displaced people following Russia’s large-scale invasion of Ukraine, the established mechanisms of the EU asylum systems ran a substantial risk of collapsing under the migratory pressure. Determined to avoid putting the efficiency of timely asylum processes and, consequently, the asylum seekers‘ rights for international protection in jeopardy, there was instant and wide-spread support among EU interior ministers to make use of the previously dormant EU Temporary Protection Directive (TPD).

Designed to ensure temporary protection in the event of a mass influx of displaced people, the TPD contains provisions meant to streamline asylum procedures and to circumvent the concrete impact on the operations of the asylum system. In addition to procedural provisions, the Directive further enables protection-holders to benefit from social and welfare rights such as residence permits, access to employment and banking services, as well as free movement in EU countries. Despite this rich legal toolbox, the TPD has not been put to use since its inception in the wake of the Balkan war. With a two-decade long history of non-implementation, there are concerns about the contemporary adequacy of the instrument’s ability to facilitate equitable burden-sharing.

Taking a Closer Look at the TPD‘s Legal Toolbox

Upon its activation by means of a unanimous Council implementing decision on 4 March 2022, the TPD’s in-built solidarity mechanism (Art. 25), which functions on the basis of both financial and physical reception burden-sharing, began its work in balancing the efforts between Member States in receiving and bearing the consequences of the mass arrival (Preamble). Instead of relying on hierarchical criteria as envisioned by the Dublin III Regulation (Chapter 3), the TPD is set out to ensure the capacity-sensitive redistribution of applicants among all EU Member States, apart from Denmark. This flexible burden-sharing mechanism seems to make the directive a time-sensitive and efficiency-based framework to address situations of mass influx. So why wait all this time and only activate the tool now?

Pursuant to Article 5(3)(c) and 25 of the TPD, the Council implementing decision installs the use of a ‘Solidarity Platform’ through which Member States inform each other of their reception capacities and number of persons enjoying temporary protection in their territories (para. 20). However, as the 2016 Commission Evaluation Report on the TPD reveals, the assessment of a state’s reception capacities is inherently voluntary in nature and not pursuant to a common capabilities framework. As such, the mechanism encroaches on the principle of fair responsibility sharing and may run the risk of violating Article 80 of the TFEU. Yet, with solidarity at the forefront of the EU Agenda on Migration, the TPD‘s central tenet cannot be seen as a lost cause, but as one in need of a more refined operational legal framework.

In Solidarity We Trust

The present absence of a central record on member states’ reception capacity solicits the development of a combined capacity index on the distribution of persons eligible for temporary protection. Without legally-fixed and comparably calculated key indicators that record the distribution of migration pressures, there cannot exist a fair basis for objective measurement of the Member States’ actual capabilities. Instead of EU Member States communicating “in figures or in general terms – their capacity to receive such persons,” (TPD, Art. 25 (1)), reliable quantitative indicators would enable a united and functional capacities overview that can help alleviate interconnected issues associated with member states’ varying expertise in responding to high pressure migration situations.

Partially drawing on a study by the European Parliament Directorate General for Internal Policies, five potential competence measures should represent the baseline for such shared statistics. Firstly, GDP per capita, as well as population and territorial size should serve as indicators representing the capacity to financially support and physically accommodate displaced persons in the country. Member states with comparatively high GDPs and larger population have the means to carry more of the burden-sharing. In order to assess the capacity to physically accommodate asylum seekers, the inverse variable of population density must be considered. By weighing population and territorial size, the measure can help determine and account for a lower capacity.

It is necessary, in the spirit of solidarity, to further mediate these key indicators in order to avoid unproportional distribution. An asylum-seeker and refugee numbers index, as currently developed by the EU Justice and Home Affairs Council (Press Conference, 18:23), could represent and acknowledge the previous efforts of applicant accommodation, as to take the real-time strain of a state’s asylum system into consideration and gauge current capacities more accurately. Lastly, other key social indicators associated with resident rights, such as but not limited to health care, housing opportunities, education, and access to the labor market, represent crucial tools to assess the availability of the TPD’s set minimum protection rights standards (Art. 12-14) in each member state. As as result, a combined capacity index for unified information-sharing help identify holes in member states capacity framework, but simultaneously strengthen other provisions within the directive.

Conclusion

The activation of TPD is a hopeful sign in promoting European solidarity in the legal framework of migration and asylum. Granted a successful operational makeover of the burden-sharing mechanism, the directive’s underlying objective can still contribute to a fair sharing of responsibility as foreseen by the TFEU. A standardized capacity overview may not only help the Council in matters of urgency to efficiently “recommend additional support for Member States affected” (TPD, Art. 25 (3)), but also enable better cooperation with other agencies, such as the European Union Agency for Asylum, as proposed in the 10-Point Plan on stronger European coordination.

Nevertheless, with the looming climate migration of an estimated 216 million people looking to escape environmental hotspots by 2050, the EU will have to constantly reevaluate its available redistribution instruments and decide when and how they need to be revised and potentially reinvented. Only in a joint commitment to enable unified progress will European solidarity be upheld.
(Legal Status as of 12.04.2022)

Asylum-seekers’ and refugees’ access to healthcare in Germany and the UK

Sioned Ellis, MSc Public Policy, University of Edinburgh

Asylum-seekers and refugees (ASRs) are particularly vulnerable to a number of health risks, from infectious diseases acquired in transit to psychological trauma resulting from war or persecution. This makes the accessibility of healthcare services paramount for them, but in many countries, they face significant barriers to accessing such services.

Analysis of these barriers herein aims to demonstrate the need for ASRs to be granted full access to health services from the point of their arrival in a host country. While said barriers are common across Europe, their presentation can vary by country. Comparisons between the UK and Germany can thus be particularly valuable given the typical distinctness of the countries’ approaches to asylum policy.

Before making such comparisons, however, it is important to identify the wider consequences of ASRs’ exclusion from healthcare wherever they seek refuge. These include deterioration in their health outcomes, knock-on effects on their quality of life, and increased pressure on the emergency services to which they are forced to turn as a last resort.

Shared challenges

The EU’s standards for the treatment of ASRs are contained in the Common European Asylum System (CEAS). The CEAS stipulates that ASRs should have access to necessary and emergency healthcare; however, its lack of detail about cost raises questions of affordability. Even in countries with fully state-funded health services, ASRs may be required to pay for their care depending on their documentation and legal status. Emergency services are often excluded from costs but this inevitably pushes people to either overuse such services in non-emergency situations or, more commonly, to delay treatment until their health reaches a breaking point.

ASRs are further deterred from accessing healthcare by the practice of data sharing between health and immigration authorities; in the UK in 2016, for example, data sharing by the NHS caused the Home Office to be alerted to the presence of 5,854 undocumented migrants. The practice has since been curtailed in the UK but still occurs in cases of overdue payments for treatment. Perhaps as a consequence of this, ASRs are more likely to rely on NGOs for certain health concerns, specifically for support following rape and other violence in the UK and for mental healthcare in Germany.

Another issue is that frequent internal relocations by immigration authorities disrupt ASRs’ medical treatment and impede the development of long-term trusting relationships with care providers. Furthermore, availability of translation services is not guaranteed and patients often rely on informal translation by family members or unqualified support workers which can result in miscommunication.

This is particularly problematic in discussions of sensitive subjects like mental health. Rates of mental health problems are disproportionately high among ASRs, but fears of stigmatisation often prevent them from seeking help. Manifestations of mental distress can vary considerably between different cultures; in non-western cultures they are often expressed as physical symptoms such as non-specific pain, so western clinicians must be attentive to this. In addition, many ASRs do not know what services are available to them, others lack trust in western medicine, while some are not aware that conditions like anxiety can be treated.

The UK vs Germany

Uncharacteristically, in the case of healthcare, the UK’s provisions for ASRs are more generous than Germany’s. Nonetheless, the UK system is certainly not without flaws.

UK-wide, ASRs generally have free access to primary, secondary and emergency health care and are exempt from the Immigration Health Surcharge faced by regular migrants. In Scotland and Wales, this does not change if one’s application for asylum is rejected, but in England, continued free access depends on the type of legal protection, if any, that one is subject to as a rejected asylum-seeker. Undocumented migrants, on the other hand, face charges after receiving urgent NHS care and before receiving non-urgent care, at 1.5 times standard costs.

Furthermore, while guidance exists for clinicians on ASRs’ health needs and rights, they report feeling out of their depth when treating these patients, which is exacerbated by low service capacity. GP practices are not legally permitted to reject applications for registration from patients based on race, ethnicity, nationality, citizenship and so on, but some are reluctant to accept ASRs as they are more likely to require translators, for example, which represent additional costs.

By contrast, in Germany, asylum-seekers’ and refugees’ exclusion from healthcare services is explicit and intentional. The Asylum-seekers Benefit Act states that after 15 months of residence in Germany, ASRs gain the same rights to healthcare as the general population, but for the first 15, they have only a basic entitlement to emergency and acute healthcare, and require a health voucher to access non-emergency care.

The Asylum Procedure Acceleration Act of 2015 introduced an electronic health card which reduces restrictions to access, but only in five of sixteen states. Differentiation between categories of asylum-seeker also adds complexity as unaccompanied minors are entitled to total healthcare coverage but those seeking asylum with their families are subject to the Asylum-seekers Benefit Act restrictions. This is reflective of the layers of bureaucracy that are common across the health systems of both countries.

Future directions

Barriers to accessing public healthcare services in general are often upheld by governments due to fears of ‘health tourism’ (where migrants enter a country to take advantage of its health services) or are a result of linguistic and cultural obstacles, poor signposting to services, or financial or logistical difficulties. Policy officials often attempt to justify the exclusion of certain groups from public services by financial constraints. But as with the right to work, granting ASRs full access to healthcare is beneficial not only to them but also to the countries that host them.

This is because it reduces the costs incurred from emergency care by prioritising more preventative treatment. Thus, unless asylum-seekers and refugees are to be excluded from all forms of healthcare, including emergency care – which would be morally disastrous – then it is only logical to ensure they have the same rights to healthcare as natives.

While Germany is comparatively liberal in other areas of asylum policy (for example, the right to work), it needs an expansion of access to health services before its rules can be considered to be mutually beneficial to ASRs and the German state. On the other hand, in the UK, the NHS is immediately available (notwithstanding its infamous waiting times) but not always inclusive of ASRs.

Both countries should therefore take the World Health Organisation’s advice to fully include this group in public health systems. The best time to do this would have been decades ago. But with increasing numbers of asylum-seekers arriving in Germany from Ukraine, and already-settled refugees from elsewhere still facing hugely unequal health outcomes in both countries, the next best time is now.

Sioned Ellis, MSc Public Policy, University of Edinburgh

Recent events such as Brexit and the German federal election, combined with current and incoming migratory pressures like the Taliban’s takeover of Afghanistan, make for an uncertain asylum policy future in Western Europe. Access to the labour market is a key issue given its importance for the wellbeing of asylum-seekers (those seeking refugee status) and refugees (those who are recognised as such), and for their chances of integration into their host societies. However, political consensus on the topic is limited, with considerable differences between European countries.

Such differences are particularly pronounced between Germany and the UK, known for their relative hospitality and self-confessed hostility, respectively. For example, while the UK’s ‘Syrian Vulnerable Persons Refugees Scheme’ pledged to accept 20,000 refugees in the five years following the 2015 crisis, Germany’s decision to temporarily suspend the Dublin agreement, meaning the first EU country an asylum-seeker reached would no longer be singularly responsible for them, contributed to them receiving around 477,000 applications for asylum in 2015 alone. Perhaps accordingly, asylum-seekers in Germany were and still are granted access to employment relatively quickly (after 3 months), whereas those arriving in the UK are largely confined to long-term dependence on state benefits. Both countries thus take substantially different approaches to that of the EU.

EU

In the EU, the Reception Conditions Directive requires signatory Member States to grant asylum-seekers the right to work within 9 months of applying for asylum but allows States to determine the conditions under which this right is conferred. Those granted asylum should be free to work without restriction, while those under subsidiary protection – whose applications were rejected but who cannot (yet) be deported for safety reasons – may still be subject to a labour market test.

The EU has recognised that these restrictions are potentially too stringent given the gaps in labour markets caused by ageing European populations, and the opportunity presented by asylum-seekers to fill these gaps. Their attempts to encourage the migration of highly skilled workers, such as through the Blue Card Scheme, have had little success, and overlook the additional need for workers in supposedly ‘lower skilled’ sectors like care.

Thus, a 2016 proposal to revise the Reception Conditions Directive suggests reducing the 9-month target to 6 months in normal circumstances. Yet many Member States still lag behind the official 9-month target. Some have not even ratified the Directive; the UK was one such state during its membership.

UK

The UK’s Immigration Rules, instead, decree that asylum-seekers cannot work at all while their application is being processed, unless they have been waiting for more than 12 months through no fault of their own, in which case the Home Office may allow them to work in one of the jobs on its extremely limited ‘shortage occupation list’. Once asylum has been granted, they can work without restriction.

According to Waite (2017), the long duration of restrictions is designed to prevent employment from acting as a ‘pull factor’ which might encourage economic migrants to enter the UK under the guise of asylum-seeking, despite the lack of evidence that this is a serious risk. A more real risk is that, without access to legitimate employment, asylum-seekers are pushed into exploitative work to escape what the Joint Committee on Human Rights has called “state-enforced destitution”.

By this account, unauthorised workers are powerless to challenge poor treatment by employers to whom they are disposable and deportable, and UK asylum policy has little interest in protecting them as their hardship is central to its design: it is based on the assumption that we can (and should) deter asylum-seeking by creating a “hostile environment”. Despite the obligation to protect, not punish, asylum-seekers under the UN Refugee Convention, the government’s stance on this issue is only hardening.

Germany

Germany’s approach is comparatively liberal, as asylum-seekers are not allowed to work for the first 3 months of their wait, after which point they are subject to a labour market test. If their application for asylum is accepted, they can work without restriction. After 15 months, asylum-seekers and those on subsidiary protection – called ‘Geduldete’ or ‘tolerated persons’ – can also work without restriction.

With regard to the labour market test, while final authorisation must be given by the Federal Employment Agency, decision-making power is relatively decentralised to municipal immigration bodies, so there can be some variation in implementation. Consistently, however, immigration officials have been found to draw on ideas of ‘deservingness’ which relate to the CARIN criteria (control, attitude, reciprocity, identity and need) first proposed by van Oorschot in relation to welfare.

Requirements around control – how much one can be blamed for one’s situation – and reciprocity – one’s contribution to society – are also embedded in German immigration law. Moreover, public discourse tends to separate deserving asylum-seekers from undeserving economic migrants. Even the official label of ‘Geduldete’ arguably implies undeservingness as those to whom it is applied are not accepted but tolerated; so it would seem that Germans feel some friction, too, with the idea of an entirely unconditional welcome for asylum-seekers.

Nonetheless, where institutional and personal prejudices remain, these seem to be at least partially countered by overall framings of migration in Germany as a potential asset rather than a hindrance. Public discourse lends more thought to the economic benefits of allowing all migrants to work – namely, reducing labour shortages and maintaining contributions to social security systems. Business associations in particular have pushed to open the market to asylum-seekers, with considerable results. Applying this to the UK, then, there may be some benefit from framing the issue not only in moral but also in self-interested practical terms: what can we gain?

Potential for change in the UK

The UK’s longstanding asylum policy relies on circular logic: asylum-seekers are a burden as they are dependent on the state, so to prevent them from being drawn to the country by economic opportunities, we must exclude them from the labour market, rendering them dependent on the state. As well as being discriminatory and feeding into anti-migration sentiments, this approach represents a missed opportunity for the economy and welfare system. This is something Germany recognises, and the EU is beginning to, yet the UK still does not.

A sustainable and just path forward must consider the needs of asylum-seekers and host countries as interrelated and mutually beneficial. Given the UK government’s record, it seems unlikely that they will open access to the labour market on humanitarian grounds any time soon. But perhaps the remaining avenue of economic self-interest is yet to be exhausted.