The refugee crisis that Europe is facing right now is difficult and horrible. Yet it is being made much worse by two bad laws. Their deadly concoction killed over thousands of people and forced hundreds of thousands on their dangerous journeys. These two laws are the Dublin 3 Accord (spelled out in three legal documents) and EU directive 2001/51/EC. The first, Dublin 3, is often invoked by Hungarian government as the main justification of its unacceptable treatment of refugees. But it is the second that is the real reason why Hungary is inundated with refugees.

Let me begin with Dublin 3. D3 is first and foremost designed to answer the following question: who is going to decide about asylum applications and take those who are accepted? You may find this question odd. But of course, the country that receives the application will! Why do we need laws for this?

The answer is simple. The explicit intent of D3 is to prevent asylum shopping. Suppose a person applies for refugee status in Germany and gets rejected. Without Dublin, he has 27 other chances to find an entry to the EU. Trying all countries could take a decade and the EU wanted to avoid hundreds of thousands of people, protected from deportation, clogging up national bureaucracies. But this still does not seem a problem that needs a law like D3. EU countries could just agree that every applicant will have one chance. He or she can apply to one country and if they get rejected this information is sent to the other 27 and they will not even consider the case if resubmitted to them.

D3 lays out the rules of processing applications. First, if the person has family in one of the EU countries, they can apply there. Second, if a country is responsible for the person’s entry in the EU, that country must process the application. For instance, if someone entered the EU on a German issued visa, and subsequently asks for refugee status in Denmark, his case would be transferred to Germany. Third, and this is the most important one, in all other cases, the country of entry must process the case. This is why Hungary is in such a mess. According to D3 it must process all refugees for asylum who enter the EU through its southern border with Serbia, a non-EU country. If Hungary fails to do it and the refugee moves on to another country, D3 stipulates that he or she must be returned to Hungary for processing. The D3 mandate is what, according to Orbán, leaves the Hungarian government with no choice.

The strange thing, however, is that the vast majority of people arriving in Hungary do not want to be processed in Hungary. They want to apply for asylum in other, more affluent and more tolerant countries, like Germany or Sweden. Just as most people arriving on ramshackle boats to the coast of Italy, they want to move on and D3 traps them in a country they do not want to live in. To make things worse for refugees in Hungary, Viktor Orbán officially announced that the country does not want to grant asylum to anyone, especially not Muslims. Accordingly, last year only 1 of 10 of Hungarian decisions were positive, compared to the EU average of 1 in 2. (It was even higher in Italy).

Under D3, with few exceptions, refugees must choose their country of hope by being in this country. If they want asylum in Germany, they should fly to Tegel or Frankfurt International Airport. This is how tourism works. If a tourist wants to see the Brandenburg Gate or eat sausage in Frankfurt, he does not have to visit first to Röszke, the small Hungarian town on the Serbian border. This is different for refugees. But why?

As Hans Rosling, the Swedish statistician convincingly has shown, it is much cheaper to fly from any of these crisis stricken countries or their neighbors to Europe, than taking the land route. A ticket from Amman to Berlin is under $500. The cost of marching from Jordan to Hungary is counted in thousands. The land route is also much longer, more dangerous, demeaning and exhausting, and offers plenty of opportunities for unscrupulous entrepreneurs to richly profit from the misery of refugees.

The refugees come on land not because they are so poor that they cannot afford airfare but because they cannot fly. One cannot flee from Damascus on plane and even if the person makes it to Amman or Beirut, he cannot board a commercial airliner. At the check-in the friendly airline employee will always ask for evidence of authorized entry to the destination country like passports and valid visas which refugees almost never have. But why are airlines acting as border guards?

And this is where EU 2001/51/EC comes in. This directive obligates all commercial carriers, including airlines, to pay for the return of any international passenger who is denied entry in the destination country. This, in and of itself, may not be an excessive penalty. Airlines could insist that people without entry permits have an open ended return ticket. Problem solved. Except the directive obligates each member country to impose financial penalties of thousands of Euros for each unadmitted passenger. So airlines would be saddled not just with the uncomfortable task of dragging an unwilling passenger back on the plane, but also with a stiff fine. The same goes for ships and trains. And this is why refugees rarely apply in Berlin or Stockholm and show up in Hungary instead.

The combination of EU 2001/51/EC and D3 creates the current humanitarian catastrophe in Europe. Without the directive, people could choose where to apply for asylum and would not have to pay an enormous price – financial and human – for their journey. Without D3, the border countries would let everyone pass and apply for asylum in the country of their choice. With both rules in place you get thousands camping at railroad stations under squalid conditions and countless bodies floating in the Mediterranean plus an unfair system that puts enormous pressures on few weaker states.

From this it follows, that the first step in solving the current crisis is to eliminate EU 2001/51/EC and work out an alternative. Obviously, carriers cannot play asylum courts but the EU could set up offices at major airports and large refugee camps around crisis zones. They would screen applicants and issue permits to fly (not asylum), and refugees could arrive to the country of their choosing. There they would be put in an asylum transit where they could be cared for and booked for processing, then let go until their case is decided. This would divert much of the flood from the border states, mostly to countries like Sweden and Germany. In those countries, there would be a substantial increase of applicants.

So as a second step, D3 should be scrapped. The EU should create a new system, where regardless of where they enter, people’s asylum requests is processed by the EU centrally or by member states according to strict and uniform EU guidelines with linked data bases. The applicant would also submit a list of desired countries ranked by priority. There would be a decision whether asylum is deserved, and if it is, a country would be offered based on the applicants’ priorities and the quota system. Then refugees would have a choice. They can either take the country offered to them or return where they came from. If they accept the country, they would be issued a temporary residency and work permit valid only locally. (Of course, they could travel anywhere in the EU as tourists.) They would get all government provided benefits contingent on supplying proof of residence in the country where they are officially settled. Their case could be reviewed periodically, each time demanding proof of residence which could also be a condition for becoming full EU citizens. Once citizenship is granted, they would enjoy all the freedoms of movement others have. These rules would prevent people from circumventing the quota system.

The quota system will have to be hammered out by the member countries. It should obviously consider the size, richness, labor market conditions, age structure etc., of each country, but some horse trading should be allowed as well. I can imagine some trading along the skill mix, some countries to buy out some (but not all) of their quotas in some manner at some (non-trivial) price. I can even imagine the Hungarians getting an exemption from settling people of the Muslim faith. (About a fifth of the Syrian refugees are Christians and many others are secular.) This kind of horse trading would not be pretty, but its results would be far better than what we have now. The quota should be up for periodic renegotiation.

There is no national solution to this crisis. There must be a common EU response. Apart from abolishing D3 and EU 2001/51/EC and redrafting a common EU law, there must be money sent to help the countries that bear the main burden of the refugee crisis to make camps there more livable. And the US and other non-European countries should also step up to the plate, take refugees, fund humanitarian efforts and weigh in to solve the deeper political and military conflicts generating the crisis.

Akos Rona-Tas is a Professor at the Sociology Department at the University of California, San Diego and is a Research Associate atMet@risk, INRA, Paris.

Photo by Rebecca Harms | Wikimedia Commons

Akos Rona-Tas

Central European Futures

Over the past several years, it has become ever more apparent that the post-Cold War era of democratic reform, socio-economic development and Western integration in Central Europe is coming to an end.

Visegrad Insight is published by the Res Publica Foundation. This special edition has been prepared in cooperation with the German-Marshall Fund of the U.S..

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