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Co-Written by Punsara Amarasinghe & Anastasia Glazova

The roots of the refugee problem Europe currently facing has derived from aged long socio political disparities of people and its present condition is an offshoot of  the same serious of problems. Nevertheless the current hullabaloo in European Union on the influx of large number of asylum seekers was mainly emerged after the outbreak of Syrian civil war in 2011 March. It has been reported the nearly 3.9 million refugees from Syria have come to Europe in seeking asylum since the outbreak of the civil war in Syria. The situation for refugees mainly coming from African, Asian background has become a worst nightmare recently as a result of rapid growth of rightwing political waves in Europe which are mainly opposing to accommodate asylum seekers coming from non-Christian countries. Those anti refugee slogans have begun to raise in ultra nationalist political rallies in Europe in the backdrop of the ongoing refuges crisis, undoubtedly which is the largest refugee inflow Europe is experiencing since the Second World War.

The emergence of right wing politics with a strong resentment on asylum seekers is visible mainly in Central Europe, especially Austrian election held in 2017 December indicates how fervently right wing political ideologies have strengthen their position whereas Conservative freedom party and Far Right Freedom party formed a coalition and the election manifestoes of both parties mainly focused on anti-refugee policies in provoking Austrians. Besides the political change in Austria in favor of right wing nationalism Hungary too has taken up a critical and antagonistic approach towards the asylum seekers. Hungary’s prime minister of right-wing Fidesz party Victor Orbonhas called a plan to distribute applicants for asylum among EU member states “absurd, bordering on insanity.” Mainly the severe antipathy on asylum seekers has sprang from Central and Eastern states with regard to refugees arrivals from Turkish route which has become the main land route for many of the Syrian asylum seekers to reach Europe. Tragically the hostility on migrants and asylum seekers has taken a spiteful direction under more xenophobic and Islamophobic stances. For instance Slovak Prime Minister Robert Fico promised that not even a single Muslim would be permitted to enter Slovakia, clearly conveying his belief that Slovakia was built for its citizens, not minorities or refugees. Though it is difficult to fathom the ongoing right wing political trajectory of Europe and its motives the legal obligations and their legitimacy in European Union towards the protection of refugees cannot be ignored.

In modern international law 1951 United Nations Refugee Convention stands as the prime legal document that binds its state parties to uphold the protection of the refugees and all EU states are state parties to this particular Convention. Apart from UN Refugee Convention the European Court of Human Rights has played a pivotal role in enhancing the regional standards to protect the refugee rights in terms of providing a better equitable justice. Especially in a case named Said Vs Hungary heard before ECHR, Court has found being a state party to European Charter of Human Rights Hungary has violated the its Article (5) 1 which prevents the deprivation of individual liberty except in accordance with a procedure prescribed by law. The court reasoning was based upon Hungary’s state practice of detaining asylum seekers without allowing them to cross the border. When many states in Eastern Europe have taken a precautionary manner to seal  their borders with the steep increase of asylum application, ECHR has taken a firm standing in safe guarding the rights of asylum seekers and refugees.

In examining the other relevant legal documents on regional mechanism over protection of refugees, the Tampere Conclusion of 1999 adopted by European Union appears to be a crucial one as it affirms Europe’s commitment to freedom based on human rights, democratic institutions and the rule of law.However the 1997 Amsterdam treaty established a Common European Asylum System and its continuation through Dublin Regulations have been criticized for its major drawback on securing the status of asylum seekers and refugees. The objective of Dublin Regulation has essentially focused on responsibility of member states to ensure the asylum applications to asylum seekers and the particular responsible member state will be the state through which asylum seeker first entered EU. The Critics of the Dublin Regulations have pointed out how unreasonably many EU member states have evaded their responsibility for asylum seekers while some states like Italy, Spain and Greece have been overburdened with larger number of refugee applications.

The major setback arising from the undue regulatory mechanism of Dublin Regulations should be revised for the first place in order to balance the sharing of asylum seekers applications in EU member states. Developing a common system based on more emphasis of European solidarity and human rights protection would provide better chances in resolving the refugee crisis in more amicable manner.

From the legal perspective Article 33 of UN Refugee Convention has stated “ No refugee shall be returned to any country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. International lawyers have often taken this Article as principle of customary international law albeit many European states are reluctant to adhere to it.

The rise of far right wing nationalism in Europe as an action of retaliation to cope with the refugee crisis would not only undermine the status of asylum seekers, it may hinder common stability of Europe too. The lack of common consensus appears to be the biggest lacuna in EU regarding promoting regional mechanism to protect the rights of refugees and asylum seekers. This was widely evident when German Chancellor Angela Merkel opted for an open gate approach to accommodate more refugees in the height of the Syrian refugee crisis in 2015 as a bulwark, many other central and eastern European states refused to follow suit.

The role of EU as a stalwart of safeguarding the refugee protection before the rise of right wing political movement only becomes a reality if it confronts the obstacles tactfully. The only path to resist the rise of Neo Nazism in a form of European nationalism to uphold its intrinsic values should be set up under cooperation of all EU member states to address the dilemma of asylum seekers and refugees as a common problem rather than being more nationalistic. The fate of  the European solidarity from moving to a jingoistic limbo or securing its position as a bastion for freedom and human rights would be decisively based on today’s action of European Union on seeking an alternative remedy to deal with the refugee crisis under more humanitarian terms.

 

Punsara Amarasinghe is a Doctoral Candidate in International Law at Higher School of Economics in Moscow. He previously studied at Faculty of Law, University of Colombo and obtained his LL.M from South Asian University, New Delhi. He served as a guest lecturer at Faculty of Arts, University of Colombo. He can be reached at punsaraprint10@gmail.com

Anastasia Glazova  studied at Volgograd State University in Russian Federation and currently she is a Doctoral Candidate in International Law at Higher School of Economics in Moscow. Her research areas include international refugee law, international human rights and issues relating to ECHR. She can be reached at angla.1892@gmail.com

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