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Refugee, Migrant, Stranger

Jef Van Gerwen

In recent years there has been a great deal of activity and discussion on the appropriate treatment of refugees and asylum-seekers. The increasing number of asylum-seekers in Western Europe, which peaked in Germany with more than 438,000 requests in 1992 alone, has been at the root of the political debate. The administrations involved seem to be unable to cope adequately with such increases, a fact which in its turn has given rise to a variety of humanitarian and juridical problems (eg. long delays, sometimes for years, in the completion of requests, the introduction of accelerated procedures, detention and repatriation problems, sanctions against transportation companies, etc.). It is not my intention here to discuss the many technical facets of this social issue (i.e. the statistical data and their reliability, the different legislative and juridical procedures, the political departments involved).1 I prefer, rather, to offer a socio-ethical reflection on one particular and fundamental aspect of our attitude (as the receiving party or host nation) toward refugees, namely, the apparently unavoidable fact that they are set against the background issues of migration and social integration. In their host countries refugees have in fact been perceived primarily as immigrants and foreigners, not as refugees. It is also not my intention to make an a priori judgment on the question. Instead, I would like to begin by inquiring into the historical and structural factors which have defined our perception of the issue. It will become clear that we can only achieve an ethically adequate treatment of refugees if we are prepared to rectify the much broader problem of our attitude to foreigners as such.

Refugee... Once we begin discussing the problem of refugees, we immediately encounter conflicts of interpretation. Indeed, our understanding of refugee status is itself far from being univocal. According to the 1951 Geneva Convention, a refugee is any person who, owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country.2 A person who requests such a status is an asylum-seeker. Once one is accepted as an asylum-seeker by the government of the host country, one acquires refugee status together with all its fundamental rights, such as the right to work, to freedom of movement and to residency. But as long as the case is still pending, the host country is in fact entitled to restrict these rights. The current number of Convention-Refugees has been estimated at around 20 million worldwide (17,272,543 in January 1992, according to UNHCR statistics). Of this total 4%-5% are to be found within the European Union (775,689 refugees spread out over the twelve member states in 1992). Asylum-seekers, however, have not been included in these figures. Since 1988 their number has increased dramatically, especially in North-Western Europe, to the point that their accumulated total has quickly out-numbered that of recognised refugees: in 1992 alone, 560,000 people sought asylum within the European Union (438,000, as we have already noted, in Germany); in 1993 an additional 466,000 sought asylum.3

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The Geneva Convention has a number of limitations, both at the level of content and application, which can be explained against the background of the European context in which it came into existence. These limitations would eventually lead to the appearance of alternative residual categories for refugees outside the framework of the Convention. The Geneva Convention was set up within the context of the Cold War, and it indeed still bears the traces. The Convention has been consistent with the policy of the Western allies to make adequate provision for refugees from the communist East-block countries. It is for this reason that the Convention speaks of persecution instead of forced migration and concentrates on ideological motives (religion, political opinion, ethnic minority) rather than on economic or ecological factors (poverty, unemployment, natural disasters) as legitimate justifications for fleeing ones country. In itself this limitation does not constitute a detached or isolated fact: it fits, rather, within the broader context of the evolution of human rights in the Western world, in which individual freedoms (right of self expression, freedom of religion, etc.) are sanctioned in a more consistent and stringent manner than basic social rights (right to housing, income, work, etc.). It is not surprising, then, that a more inclusive definition of refugee than that maintained by the Convention would eventually be called for. Indeed, both at a practical and theoretical level, it is the forced character of migration which constitutes the criterion par excellence for speaking of flight.4 It is beyond doubt that the intensity of the forces involved may vary widely: Did the person leave partly by his or her own will? Did he or she have alternative destinations to choose from other than the host country in which he or she is requesting refugee status (for example, safe zones within his or her country of origin, or neighbouring countries)? Such questions of evaluation are, in fact, now just as likely to be asked by the officials involved
1.

in the implementation of the Geneva Convention. Assessing the level of force, however, does not take away from the fact that people have a moral right to flee from threatening living conditions which have arisen outside their control and to seek refuge in safer and more prosperous territories. There may be a certain economic rationality behind the inquiries of host countries as to whether a candidate refugee could have found another place of refuge, or whether there is a fair sharing of burdens between the states involved. Still, such considerations on behalf of the host country should never assume precedence over the fundamental right of safe refuge. This is guaranteed, in as many words, by the so-called nonrefoulement principle (Art. 33 of the Convention). One should certainly not run the risk of placing people in a life threatening situation because of an overly strict admissions policy. An overly strict definition of the right to asylum, which excludes economic and ecological reasons, has laid the basis for the impasse Western states have had to face in recent years. A large number of asylum-seekers have been rejected simply because their request was not supported by official criteria, and without making any effort to inquire whether the request itself was morally legitimate. All of this is taking place, moreover, in the context of an immigration policy which offers few if any alternatives to free immigration, i.e. the so-called immigration-freeze (see below). The chance is all too real, therefore, that a number of refugees have been and are being refused asylum on grounds that are morally unjustifiable. We also encounter a second limitation in the interpretation of what is considered to be a wellgrounded fear of persecution. How strictly should this concept be interpreted? Furthermore, how far should a candidate have to go to prove the validity of his or her fear? In recent years there has been a clear evolution towards a more restrictive interpretation concerning this point.
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Initially, the administrations of host countries did not tend to concern themselves with the personal character of the persecution in question: almost every refugee from Hungary after the 1956 uprising, or from Czechoslovakia after the Prague Spring, had been given the status of refugee simply because they came from the Eastblock (and rightly so for that matter!). Yet for the refugees from Kurdistan or from ex-Yugoslavia in 1991, this was no longer the case; once the former anti-communist motivation no longer played a role, Western states began to implement extremely restrictive admissions procedures. Those from the ex-Yugoslavia had to remain in their own territory as internally displaced persons (2-3 million of them did just that). Mostly under pressure from internal public opinion, certain European states did eventually give temporary residence permits to a limited number of these people without, however, admitting them to the category of asylum-seekers. On the contrary, they were consigned to the so-called B-status of de facto refugees, the significance of which has varied from country to country (tolerated persons, displaced persons, exceptional permission to reside in the country, temporary protection, residence permit for humanitarian reasons, etc.) and in most cases conferred less legal security than that of Convention-refugees.5 Considering the catastrophic situation in their own country, those from the ex-Yugoslavia surely had just as much right to request the status of Convention-refugee. For the sake of expediency, however, (administrations were already too busy to evaluate requests for asylum, the extremely urgent nature of the requests, the collective and non-personal nature of the reason for departure) this was never followed up by most countries. It is probably necessary and desirable that such temporary and exceptional arrangements exist in order to cover emergencies not foreseen by the Convention. Nevertheless, the arbitrariness which has been introduced when different states employ diverse criteria for admission and differ-

ent legal categories for the same type of refugee, can and should be called into question. At the same time, the possibility which is left open here to circumvent the stricter Convention-status whenever the host country sees fit can also be disputed. This brings us to a third type of restrictive regulation: the differences between national legislatures. Because the implementation of the Geneva Convention has come under the jurisdiction of national governments and legislatures, differences of interpretation of Article 1 have been unavoidable (What constitutes persecution? What is a well-grounded fear? To what extent must the personal character of the fear of persecution be proven and what would be considered a valid proof?). If differences occur, however, that country which gives a broader interpretation of the Geneva Convention than the others will be inevitably forced to carry greater burdens than the others (more refugees, more new requests for asylum, etc.). This phenomenon has been well illustrated by recent events in the Federal Republic of Germany where former article 16 of its constitution led to the most liberal interpretation of the right to asylum within the European Union. As a consequence, and prior to the modification of this article in June 1993, Germany has had to deal with the greatest portion of requests for asylum by far, just at the point when its administration was already under extreme pressure from the effects of unification (such as the migration of East Germans and other German nationals). In the absence of a coordinated European policy on asylum (such as harmonisation in the implementation of the Geneva Convention and the sharing of burdens in receiving refugees) Germany has been forced to introduce a more restrictive policy: detention of candidate refugees, accelerated procedures, shifting the burden (sending back candidate refugees) to safe transit countries. This change, of course, has had a snowball effect: as a
3.

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result of Germanys new restrictions, neighbouring countries have in turn set up more restrictive regulations in order to avoid taking on the role of most attractive refuge. The result has been a negative spiral of more and more restrictive implementation of the Geneva Convention in which, on the one hand, the fundamental rights of asylum-seekers (freedom of movement, due process, right of appeal) have threatened to run into difficulties while, on the other hand, the fundamental problem (a consistent international policy) has never been properly tackled, in spite of the many initiatives (the Dublin Convention of 1990, Article K of the Maastricht Treaty, and the long awaited but constantly delayed implementation of the Schengen Agreement, etc.). ... Migrant In principle, asylum and migration are two quite distinct issues: asylum being given without condition to any person who finds him or herself in serious danger. A host country cannot, in principle, fix quotas or set terms on the number of refugees it is willing to accept, whereas it can rightly use such procedures where immigration is concerned. In practice, however, this distinction is in danger of disappearing, both on the side of the migrant and the host country. Many of those requesting the status of refugee have a variety of motives, some that are legally recognised, others that are not. At the same time, the forced character (flight aspect) of migration is often a matter of degree. In the host countries, Convention refugees, de facto refugees and immigrants alike have been lumped together as new residents. Whatever the reason for residence, it has always been a question of people who need to be registered, fed, housed and supported (until they can find work and income for themselves). The public administrations and populations of the host countries, therefore, have had a spontaneous tendency to place political refugees and asylum-seekers within the context of their overall immigration

policy. The situation has been further complicated in the Western European context by the so-called immigration-freeze. Since 1974 it has been very difficult to obtain a residence permit for a member state of the European Union unless one is well-off or already in the possession of a job. The only other alternative for immigration to one of the states of the Union is either by way of family re-unification (once again very strictly interpreted: only open to spouses and unmarried minors) or by marriage to a person who is already a national of one of the member states. Other possibilities for residence and work permits have been granted in drips and drabs and have been far from assured. It is, therefore, no surprise that in recent years, due to the lack of legal alternatives, many aspiring immigrants have made improper use of the few possibilities available to them (marriages of convenience, forced marriages, etc.) in order to enter their country of choice with the minimum of legal entitlement. As a consequence of such abuses, the administrations of the host countries have been forced to interpret the recognised criteria for entry even more strictly, with the result that a second negative spiral has developed, analogous to the one we have already noted with regard to the treatment of requests for asylum. The European situation has been characterised, therefore, by a double shift: on the one hand, the absence of immigration possibilities has encouraged candidate immigrants to make improper use of the existing legal arrangements (asylum, family re-unification, marriage, tourism, study, internship); on the other hand, due to the absence of a common immigration and asylum policies, individual nations have been and are continuing to be confronted with a Prisoners Dilemma, i.e. the country which appears to be the most accommodating ends up with the heaviest burden. As a result, it would seem that the only way to break through this double impasse is for the establishment of a common European policy on immigration and asylum. The appropriate institu-

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tions within the European Union need to define and implement such a policy which would lead to a harmonisation of all procedures and criteria for entry into a European state, and do so in such a way that no member state would ever be placed in a position of being tempted to close its borders to the disadvantage of its neighbours. In a situation where the prospective reception of immigrants and refugees (due to geographical or economic circumstances) might still run into problems of disproportionate allotment, then the existing solidarity mechanisms of the European Structural Funds can be applied to ensure that the financial burdens involved are distributed fairly between the member states. A harmonisation of European immigration and asylum policies is also necessary for practical reasons, namely to accept the consequences of the existing rules of free-movement of people. It is not reasonable to allow citizens of the member states to travel over the whole territory of the Union and at the same time to prevent those persons of other nationalities who have legal residence permits from doing so. Such restrictions lead to unnecessary controls and obstacles. Such European policies will only be effective when, next to the existing arrangements for immigration and asylum (Convention, de facto, family re-unification, marriage, temporary residence for study or internship, tourism), the status of immigrant is reinstituted. In this way immigration can be limited to an annual quotum in line with countries such as Canada, Australia and the United States. Candidates would then be required to inquire in advance as to whether it is possible to immigrate legally into a country of the European Union. The appropriate European authorities (Commission, Parliament, Council) have to decide how large this annual figure would be, together with the criteria involved. In order to find a solution to the current malaise it will be necessary: (a) that the proposed alternative be introduced in order to relieve the current avenues of immigration (especially the improper use of exist-

ing channels); (b) that it takes effect on the European, i.e. not national, level in order to prevent individual states from passing the burden to their neighbours. In recent years a number of humanitarian organisations and study centres have made proposals along these or similar lines.6 The chance that such an immigration policy would be accepted seems, for the moment at least, to be exceptionally small. Between the proposals of academics and humanitarian organisations on the one hand, and the rhetoric of most politicians on the other, there is a wide and deep divide. In the end, current European policy is still characterised by: (a) the freedom of individual national governments to define their own rules for entry into their territory, even when this leads to difficulties with regard to the implementation of the principle of freedom of movement within the Union. We are dealing here with a core element of state sovereignty which member states are only likely to give up under extreme pressure. (b) the denial of the need to accept new immigrants even if only in limited numbers. According to the official position, a policy of enough investment and cooperation with potential sources of immigration would be sufficient to prevent future waves of migration to Europe. In light of the demographic and economic developments both in and around Europe, the latter objective of prevailing European policy seems more and more an illusion. According to extrapolations from current demographic trends, the population of the Union in the coming thirty years is likely to remain stable, some member states, such as Germany and Italy, might even expect a slight fall. In the Maghreb states, Egypt and the Near East, on the contrary, a doubling of the population can be expected within the same period. Such an evolution cannot be absorbed by the existing volume of investment by the local authorities, and even less by the present level of European assistance. It is clear, therefore, that the demographic imbalance between the European Union and its Southern neighbours will lead to

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greater differences in economic well-being and development between these two regions, and this in the midst of increasing communication possibilities between them. A more realistic European policy, therefore, would combine a maximal effort of European investment in the South with a quota-system of planned immigration from Southern states. If the latter is neglected, the growing imbalance will, without a doubt, lead to an increase in illegal immigration and eventually to a state of geo-political crisis. For many, however, such an approach remains out of the question, considering the fact that a significant part of European public opinion is opposed to it. Indeed, public opinion is still weighed down with worries over the integration of immigrants from previous generations, i.e. people from the Maghreb and Turks, who for the most part gained entry prior to the 1974 immigration freeze together with immigrants from former colonies. Although it is only a question of a small minority, 2% of the total population of the Union, the integration process of these earlier generations of immigrants has been moving painfully slowly, because, among other things, it has been happening within the context of a crisis in the welfare state (unemployment, marginalisation, lack of social security, insecurity). Political concern has been and continues to be focused exclusively on this present problem while the broader and perhaps more urgent problems of the medium-term future continue to be avoided. Why is it that this impasse has occurred, and how might we overcome it? ... and Stranger This last way of looking at the question unavoidably leads to a confrontation with a fundamental aspect of the problem, a dimension which concerns the evolution, intended or unintended, of our own collective identity as Europeans and as nations. Many of our fellow citizens have been reluctant to accept the consequences of the con-

temporary geo-political situation and to prepare for new waves of immigration because they immediately conceive of migrants as aliens whom they identify as a threat to their own identity on economic, social and cultural levels. Immigrants have not only appeared as competitors for already scarce economic benefits (e.g. housing, schools, jobs, etc.) which are (rightly or wrongly) taken for granted, they have also placed in question our socio-cultural identity, an identity which had already been under threat before their arrival and whose apparent collapse has been made more manifest by their presence. Socio-political analysts such as Heitmeyer, Schmid and Cohn-Bendit, have referred to this fundamental area of difficulty.7 In the accelerated passage from modern to postmodern society, from industrial to service economies, from Cold War to the new geo-politics, many elements of collective identity have dissipated. The old working class and culture have all but disappeared; ideological groups and political parties have lost their powers of attraction, large portions of the population no longer take satisfaction in their identity and orientation; neither can such things be found in their careers (they are either unemployed or in danger of losing their jobs), nor in the places where they live (they have become anonymous), nor in those things which gave their common existence meaning (they are confronted by secularisation, division, the privatisation of religion and morality). Such a loss of identity has resulted in the resurgence of conservative utopias, analogous to the romantic reaction against the rationality of the Enlightenment. Nation, people and language have offered a new anchor; cultural homogeneity (either real or purported) has become the ultimate authentic source of identity which is in need of affirmation against whatever is modern (Europe, international commerce and business) and whatever is alien (immigrants). It has become obvious that those societal groups which have suffered the most from this loss of identity (industrial workers, people who live in the old working-class

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districts, the elderly, the unemployed, young people with no career prospects, the poorly-educated) have been the very ones to whom the conservative utopia of homogeneity has spoken the most. Against such a background, any contributions from outside come at an awkward time. The expansion of cultural diversity within society is not perceived as a positive challenge which can be achieved in a context of dialogue and co-existence with others, but rather as an overburdening of an already threatened identity. In order to break through this prejudice against foreigners, it is not enough to refer to factual information, such as the geo-political situation, or statistics, or historical data on previous migrations. It is even less useful to try to develop ethical arguments based on the principle of Judeo-Christian hospitality towards strangers, or on the consistent implementation of human rights. Seen in themselves, such arguments are correct but not appropriate as long as a threatened indigenous population continues to feel that its own problems are not being taken seriously, or at least not being treated with equal priority to the reception of new immigrants. Without an effective social policy with regard to marginalised and alienated groups within the indigenous population of a country, a consistent policy on immigration does not stand a chance. It seems equally wrong-headed, however, to avoid the debate on immigration policy altogether with the excuse that the capacities of current social policy are inadequate to turn back the tide of frustration and loss of identity experienced by indigenous populations - indeed, the matter is too urgent. This brings us to our final consideration. As J. Kristeva and T. Todorov have so splendidly illustrated in their historical analyses, the encounter with a foreign culture, i.e. with the totally other, the stranger, is always a risky and difficult affair.8 The temptation to reduce the other to someone like ourselves (assimilation), or someone

less than ourselves (colonisation, apartheid), always looks easier than the long and arduous process of coming to know the other, a process wherein both are changed little by little, as they slowly evolve from co-existence into convivialty. Surely no people or culture is immune to such temptations. As Europeans, however, we have the extra handicap of our recent past: since the beginning of modern times we have approached other cultures as if we were superior (coloniser, economic super-power, highly developed society) or as if they were our pseudo-equals (immigrants from other countries within the Western sphere of culture, based on the same ideological and juridical presuppositions as our own). Our collective memory is, therefore, less prepared than most of our immigrating partners (mostly children of colonised peoples who have grown up in confrontation with the dominant Western culture over generations) to engage in dialogue and allow for mutual evolution towards a new and common cultural identity. This indeed seems to be the fundamental challenge with which refugees and immigrants confront us today: can the Old World not only overcome the obstacles its accelerated social evolution is presenting to its marginalised indigenous populations, but also dispose of the deadwood notion that the (western, modern) identity it has achieved is evident and immutable? Is it possible to engage in a dialogue between West and East, between Christian or humanist and Muslim, as each others equals? Moreover, can this be done on European soil? Such a suggestion has nothing to do with the denial of the value of ones own tradition, it rather presupposes a basic attitude of readiness to let each unique tradition evolve in interaction with the other. The presence of the stranger as migrant, as minority near at hand, offers us, as such, a foretaste and a crucial test for the global dialogue that is still to come, now that humanity is beginning to live together in one single planetary social order.

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Notes
1. For further documentation on these questions, refer to the publications of Amnesty International (EU Association, Brussels: Europe, The need for minimum standards in asylum procedures, June 1994), and the European Council of Refugees and Exiles (ECRE, London: including Reinhard MARX, Temporary Protection, June 1994). See also my article Europa is een immigratieland in Streven 60(1993)3, p. 204-214. 2. The Geneva Convention on Refugees, July 28th, 1951, art. 1a. At first the Convention was only applicable within Europe. Only after the New York Protocol of 1967 did it receive worldwide application. Not all the states involved, however, have signed the Protocol. On the international level there exist further, less restrictive, provisions such as the Convention for the Organization of African Unity in 1969 and the Carthagena Declaration of 1984. The Geneva Convention remains the most important in current international law, especially under the influence of the United Nations High Commission for Refugees (UNHCR). 3. Data from UNCHR, Brussels (1992) and ECRE, London (1993). 4. De facto refugees, see Recommendation n. 1088 of the Council of Europe (1988). For a proposal from a nongovernmental organization to broaden the concept of refugee, see ECRE (European Consultation on Refugees and Exiles), Working Paper on the Need for a Supplementary Refugee Definition, April 1993. 5. Jrg ALT, Root Causes of Flight and Migration in Refugees. Migrants. Xenophobia. A Challenge to Christians, Pax Christi International, 1992, p. 13. Michael CZERNY, Reflections on the causes of forced displacement, Jesuit Refugee Service Conference, Leuven, August 29th, 1994. 6. I myself have worked on a policy proposal along these lines which has been circulated by Caritas Europa; see, among others, Vorschlag fr eine neue europische Einwanderungspolitik in H. UIHLEIN, Das neue Europa, Kongressbericht KLD. Freiburg, 1994, p. 131-149. Analogous proposals are to be found in: W. WEIDENFELD (ed.), Das europische Einwanderungskonzept. Gtersloh, Bertelmann Stiftung, 1994; D. MEISSNER, et al., International Migration Challenges in a New Era (Trilateral Commission Report, 44). New York, 1993; S. OGOTA, et al., Towards a European Immigration Policy, Brussels, Philip Morris Institute for Public Policy Research, 1993; S. COLLINSON, Beyond Borders: West European Migration Policy Towards the 21st Century. London, Royal Institute of International Affairs. London, 1993. 7. Wilhelm HEITMEYER, Gesellschaftliche Desintegrationsprozesse als Ursachen von fremdenfeindlicher Gewalt und politischer Paralysierung in Politik un Zeitgeschichte, Beilage zur Wochenzeitung Das Parlement, 8 Jan. 1993; Daniel COHN-BENDIT, Thomas SCHMID, Heimat Babylon, Das Wagnis der multikultrellen Demokratie, Hamburg 1992. 8. Julia KRISTEVA, Etrangers nous-mmes. Paris, 1989; Tzvetan TODOROV, La Conqute de lAmrique. La rencontre de lautre. Paris, 1983.

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