Afghan Crisis Toolbox: what the EU does vs. what it could actually do

By Laura Salzano

On April 2021, the EU signed a Joint Declaration on Migration Cooperation (JDMC), the successor of the Joint Way Forward on migration issues, whose objective is addressing refugees and migration challenges, through “cooperation […] from and to Afghanistan, including the prevention of irregular migration and the return of irregular migrants”. The Joint Declaration, as observed by ECRE, is nothing but a framework for deportation, regardless of Afghanistan being considered the “least peaceful country in the world for the second year in a row” by the Global Peace Index 2020.

As a matter of fact, relations between EU and Afghanistan have definitely been asymmetrical, as also demonstrated by the Joint Commission-EEAS non-paper on enhancing cooperation on migration, mobility and readmission with Afghanistan which identifies the Afghan aid dependency as one of the leverages to be used by the EU to enhance returns. The European Union has therefore enforced returns towards Afghanistan for a long time now. This is why, while tensions were growing, Austria, Belgium, Denmark, Germany, Greece, and the Netherlands wrote to the European Commission claiming that halting returns could send the wrong signal and it was “likely to motivate even more Afghan citizens to leave their home for the EU”. The answer was that “it’s up to each Member State to make an individual assessment of whether the return is possible in a specific set of circumstances, that needs to take into account the principles, notable the principle of rule of law and other fundamental rights”.

Immediately after the Talibans took control of Kabul on August 15th, the UNHCR published a non-return advisory inviting all countries to allow Afghan citizens to enter their territory and ensure respect for non-refoulement. Germany and the Netherlands reacted immediately suspending returns, but, as the Commission’s representative told the European Parliament, “there will be no return to Afghanistan” as “the agreement that the EU had is for the moment suspended”, including for those who have not been granted asylum. However, the European Commission is incentivizing the resort to third-country nationals readmission clauses in agreements currently in force or under negotiations to facilitate returns.

On August 31st, the JHA Council held an extraordinary meeting to discuss the situation in Afghanistan. It identified as priorities the “stabilization of the region to ensure humanitarian aid reaches vulnerable populations” and the financing of neighbouring and transit countries. With the goal of avoiding migration phenomena becoming “new security threats for EU citizens”, Member States proposed to finance third countries to prevent illegal migration, reinforce border management capacity and prevent smuggling of migrants. The plan is clear: preventing refugees from physically reaching EU territory and seeking international protection.
And this despite the vast majority of them would not find protection before the EU in any case: asylum lottery would be against those who will have their application assessed in Greece, in application of the “irregular first entry” criterion of the Dublin Regulation. In fact, under Greek asylum law 4636/2019, applications for international protection are inadmissible if a country that is not a Member State is considered a safe third country for the applicant. On June 7th 2021, the Greek government published a new Joint Ministerial Decision designating Turkey as a safe third country for asylum seekers from Afghanistan and other 4 nationalities. On this basis, the Lesvos Regional Asylum Office rejected requests for international protection from Afghans refugees. One of those, for the first time in September 2021, was overturned by the Board of Appeal, which considered Turkey not a safe third country for the applicants.

Almost certainly bad luck awaits those who apply for protection in Bulgaria, where the protection rate is 4.1%. Italy most probably offers a better future, where recognition is as high as 93.8% (AIDA data).
In the meanwhile, as known, Turkey has reinforced its border with Iran to block refugees.

There is no way out, isn’t it?
These days, many have advocated for the implementation of the so-called Temporary Protection Directive. Effective since 2001, the instrument was meant to offer “temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons”. Although Italy and Malta had requested its implementation in the past, the Council never found the needed qualified majority to activate it (55% of countries representing 65% of EU citizens)- and, as the Commission observed it is very unlikely that it will be found now.

Humanitarian corridors have probably been what the public opinion requested the most. In the absence of a legal framework, organizing and managing “aerial bridges” would require an effort of imagination from Member States, as well as a minimum cooperation from the departure State. From a supranational perspective, the EU could resort to the means already in place within the Support Platform for the Solutions Strategy for Afghan Refugees (SSAR). To the platform, whose core group is also formed by UNDP, UNHCR, the World Bank, US and other States and currently chaired by the EU until next year, take part more than 60 government agencies, humanitarian and development actors and has proved of great help in coordinating efforts for returns and reintegration purposes. Converting it in a means to allow refugees out of the area would be feasible, as confirmed by the EEAS. This, in any case, entails a strong political will, currently lacking.

Another instrument called for is the humanitarian visa. As known, the ECJ’s position is that ​​ MS are not obliged under EU law to issue visas on humanitarian grounds, but remain free to do so under their national law. More recently, the ECtHR was called to assess the compatibility of a humanitarian visa denial with the Article 3 and 13 of the Convention. Being its jurisdiction primarily territorial, it found the case out of its scope and thus inadmissible. Still, Member States may issue humanitarian visas with limited territorial capacity under articles 19 and 25 of the EU Visa Code. Possible beneficiaries would be those Afghan citizens who are currently in transit countries, since European embassies in Afghanistan are closed due to security reasons. As opposed to humanitarian corridors which require the factual rescue, visas would allow beneficiaries to safely enter EU territory and apply for international protection. It is a strong legal pathway, also requiring minor practical efforts.

What about resettlements? On July 9th 2021, representatives of the EU, US, Canada, the UNHCR met to reconfirm “their determination to work together and coordinate efforts to provide the much-needed solutions for vulnerable refugees around the world”. The pledge made back then will be increased soon as the Commission reassured during the last August 31st LIBE meeting. At EU level, resettlements are financed by the recently agreed on Asylum, Migration and Integration Fund Regulation, now effective, into force and ready to be used. Despite being UNHCR still on the ground, the process would still be burdensome as it entails a political stability and security guarantees that the country does not currently offer.

Finally, individual countries may come up with individual solutions. It is the case of Spain that could enforce Article 38 of law 12/2009 on asylum and subsidiary protection. The provision allows, under specific circumstances, refugees to lodge their applications before Spanish Embassies and Consulates abroad. Similar provisions could be encouraged by Member States.

While political will would facilitate safe access to Europe, thus sparing suffering and saving lives, an efficient asylum system would still be sorely needed. Still, migration flows continue to be managed in a crisis mode and distortions as asylum lottery, inhumane conditions at borders, unaccountability of public actors for their actions remain the rule. While it is still premature to conclude that the New Pact will indeed be the advertised “fresh start”, there is no need to
wait until the end of the negotiations to recognize the Member States’ same old
reluctance in responding to humanitarian crises.

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