Roadmap to a human right-based refugee protection system

PROTECT – The right to international protection – a pendulum between globalization and nativization? endeavours to help the international community – including policymakers and actors operative in policy and governance networks in general – to develop a more human rights-friendly refugee protection system. The United Nations and the European Union have introduced new international collaboration programs. However, these initiatives do not specify the methods to reach the target. To fill this gap, PROTECT’s 50 researchers working at 12 universities in Europe, Canada, and South Africa, have identified the legal norms, governance architectures, and public discourses that best serve this goal.

LEGAL NORMS

First, our legal researchers have been studying how the current international refugee protection system and human rights legal norms have been performing within the current context of economic crisis, democratic backsliding, mass migration flows, and the Covid-19 pandemic.

First results, produced in our expert forums in Canada, the European Union, and South Africa seem to indicate that the Global Compact on Migration and the Global Compact on Refugees can indeed serve as new windows of opportunity to tackle the global protection deficit, if one builds on the strengths of the Global Compacts: while the objectives of the legally non-binding Compacts do not go beyond pre-existing human rights commitments, they do, however, constitute an important political affirmation of those human rights commitments in the context of migration, ensuring their legal effectiveness.

This, however, does not take away from their shortcomings. The GCM – in contrast to its objectives – includes vague requirements on implementation without proper review mechanisms, leaving states options of interpretation that can even counteract its aims. The team also highlights the importance of addressing the protection gaps on the ground, the importance of starting with local and regional migration management actions plans first and then moving to the continental, global level. More data is needed to inform evidence-based policymaking. Inputs from civil society and the private sector are key for shifting the narrative around migrants and refugees. Equally, the forums have highlighted opportunities to engage across different sectors and themes (such as migration, protection, development and trade). On a practical level, the GCM is not sufficiently taken note of in law making processes at national and regional level. Finally, any legal norm should clearly distinguish between refugees and other migrants, and an additional legal norm needs to be introduced to safeguard the rights of other protection seeking migrants.

GOVERNANCE ARCHITECTURES

Second, as part of our research on governance and history, we have collected and finished coding data about the refugee determination procedures of 17 key countries. We find that administrative capacity matters, but so does the political context that surround it. Based on these data, the details of the asylum governance modes that best perform towards the goal of developing a human rights-based protection system are as follows: the governance architectures at the borders allow a global multi-level collaboration system whereas states’ asylum decision procedures are made more independent from state structures and include human-rights organizations as co-decisionmakers.

Furthermore, our historical-comparative analyses shows how different institutional architectures of refugee protection have historically developed and affected protection quality in Denmark, Switzerland, Belgium, France, Germany, Austria, Greece, Italy and the Netherlands. It shows how asylum offices became an intrinsic part of the institutional landscape of the state in each of our countries and points out the great variation in responses to protection needs.

During our fieldwork studies, we have been doing research in the migratory hotspots of Catania, Cadíz, Lesvos, Thessaloniki, Marseille, Musina, and Toronto with a particular focus on how the existing international refugee protection system is handling vulnerable people and how actors collaborate to address and reduce vulnerabilities. In all country case studies collaborations and partnerships between different kinds of actors addressing vulnerability exist however the ‘uneasy alliance’ of care and control in immigration policies creates tensions in the day-to-day collaboration between actors with different orientations and objectives.

New forms of collaboration often appear as a response to perceived crises. But these often do not coalesce into longer-term initiatives/collaborations. Actors tend to emphasise the importance of good informal relations rather than formal structures of collaboration. In de facto governance, much interaction tagged as collaboration is characterized by marketization and contractualization between asymmetrically positioned actors, which influences for example the orientations and agendas of CSOs, as well as their internal structure and their readiness to oppose state policies. Overcrowding and malfunctioning in the state financed reception programs leads to local actors being faced with asylum seekers and irregularised migrants’ urgent social needs. The competition for scarce public resources can create obstacles to collaboration between CSOs.

In all country case studies, understandings of migrant vulnerability and specific needs are shaped through mechanisms such as funding opportunities, training, production and dissemination of knowledge, and civil society advocacy. The largely category-based approach and the notion of vulnerability increasingly implies selective rather than additional assistance, a shift in humanitarian concern from the vulnerability of all people on the move to the vulnerability of only some – leaving out a wider range of complex individual situations, including the situation faced by most people on the move (lack of knowledge about language and legal procedures, lack of social network and means of living in the place of arrival), as well as vulnerabilities produced and/or exacerbated by the country of arrival’s institutional and legal context. In addition, the lack of legal status was widely recognized as a key source of vulnerability, as well as gender.

As for the impact of the compacts, knowledge of, and engagement with them among governance actors were very limited in all the field sites. So far, the compacts did not have significant implications for collaboration patterns, networks and implementation on the ground.

PUBLIC DISCOURSES

Third, as part of our work on surveying civil societies` attitudes, we have finished data collection about the non-state organizations contribution to international refugee protection: CSOs help in framing and discussing refugees and migrants, their involvement is contingent on resourcing, they provide direct aid, not supporting CSOs will create significant problems for states, they are a key means for refugees and migrants to have a voice and they can help to make the Global Compacts more meaningful.

Our research indicates that, CSOs will be relatively more common in political spaces when formal political structures are less present. Those CSOs operating at the transnational level will be overwhelmingly characterised by globalist and regionalist policy positions. In states where the formal political discourse around migration and refugees tends towards the nativist or nation-statist, then CSOs that act in these domains might tend towards being more regionalist or globalist. In the most general terms, globalist and regionalist CSOs will be much more likely to undertake work directly with migrants and refugees than nativists. Nativist CSOs will embed migration and refugee work within wider projects, and so be much less likely to place those activities as their central focus.

Additionally, we have been studying and analysing, respectively, citizen attitudes, media discourses and communicative networks. The studies of citizen attitudes and media helps us to assess the potential discursive and citizen pressure on policymakers when they attempt to implement new international protection policies. Already at this stage, we can reveal that governments need not be concerned about the legitimacy of their policies aiming to enter international solidarity and collaboration arrangements that promote a human rights-based approaches to refugee protection.

The findings, combined, indicate that there is a significant public support in Europe and globally for international solidarity on refugee issues. However, there is also discursive pressure from nation-statist and nativist stances on UN and EU policymakers regarding their initiatives to introduce international solidarity in refugee protection policy. Moreover, the UN and EU cannot influence these policy actors on social media because they are outside the UN’s and EU’s networks of communication in social media.

In conclusion, governments should avoid spreading market-oriented and national interest-oriented discourses on refugees and asylum seekers and promote a human rights discourse instead. EU organs and agencies overseeing, or handling refugee and asylum policy need to adopt and promote discourses that distinguish more clearly between refugee protection commitments and the EU’s migration policy objectives. At the end, more work at all levels (international, regional, national and local) is needed to shift state-based narratives around migration, from ‘controlling’ the movement of people to ‘facilitating’ the movement of persons.

PROTECT The Right to International Protection. is an EU-funded research project launched on 1 February 2020 and led by the University of Bergen in Norway. The project studies the impacts of the UN’s Global Compacts on Refugees and Migration, which are two non-binding frameworks promoting international cooperation and responsibility-sharing as key solutions to handle global refugee flows. By studying how the Compacts are received and implemented in different countries, and how they interact with existing legal frameworks and governance architectures, we investigate the Compacts’ impact on refugees’ right to international protection. More on PROTECT`s overall theoretical framework though a cleavage theory approach – (i) globalist, (ii) regionalist, (iii) nation-statist, and (iv) nativist – can be found here.

Sources

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