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Viktor Marsai's PowerPoint Presentation
Event Summary
The Center for Immigration Studies hosted a panel discussion examining present asylum laws in the United States and in Europe, how they work, their impact on illegal immigration, and proposals for reform. Members of the newly formed International Network for Immigration Research (INIR), which includes like-minded think tanks in the U.S., Israel, Hungary, France, and the UK, discussed how their countries are navigating their current asylum crises and address the shared challenge of immigration control.
Participants examined whether the post-WWII asylum regime is an anachronism that needs to be re-thought and the proposed asylum reforms being discussed in the current negotiations between Republicans and Democrats. Watch to hear about the European Union Migration and Asylum Pact and what the U.S. can learn from this newly passed agreement.
Participants:
Viktor Marsai, Director of the Budapest-based Migration Research Institute
Nicolas Pouvreau-Monti, Co-founder of the Immigration and Demography Observatory in France
Eric Ruark, Director of Research, NumbersUSA
Mark Krikorian, Executive Director, Center for Immigration Studies
Date and Location:
January 10, 2024
Washington, DC
MARK KRIKORIAN: Good afternoon. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies.
And this is the first event under the auspices of a newly founded cooperative arrangement called the International Network for Immigration Research. We started INIR last year – late last year to foster information sharing and collaborative research based on the premise that while every country is going to have a different immigration policy based on their own interests and preferences and what have you, every nation has the right to enforce its chosen policy. So INIR focuses – we just started, but we’re probably going to be focusing mainly on enforcement-related, illegal-immigration-related issue.
And we have representatives of some of the network’s members here to talk about what is probably the most pressing immigration-related issue that immigrant-receiving countries are now grappling with, which is asylum. And I will talk a little more about sort of my take on it, but we’re going to start by going over the issues related to asylum in the various countries that are coping, are struggling with this.
First, Eric Ruark, who is the director of research at NumbersUSA, is going to talk about the U.S. – asylum in a U.S. context: What are the issues that we’re facing? And what are some of the proposals that are being negotiated, even presumably as we speak, about changing policies and statute?
Next, Viktor Marsai, who is the director of the Migration Research Institute in Budapest, is going to be talking about the new EU asylum agreement, as well as the experience that Hungary has had.
Next, Nicholas Monti, who is the co-founder of the Immigration and Demography Observatory in France – that’s the English translation of it. If I tried to pronounce it in French, it would probably come out even worse than if I tried to say Migration Research Institute in Hungarian, and believe me, that would be a mouthful. (Laughter.) He’s going to talk about the French asylum crisis as an example of what all of Western Europe is dealing with.
And then I’m going to wrap up and look at sort of the whole post-World War II asylum regime and the challenges that it presents to all developed countries; not just even the ones that we’re talking about here, but other members of our network including – we have agreements with or cooperation with groups in Israel and Britain as well. And, obviously, other countries – Australia, even Mexico – are dealing with this asylum issue.
So we’ll start with Eric and go from there, and have questions at the end.
ERIC RUARK: Thank you, Mark. And it’s good to have the band back together. Unfortunately, one of our members couldn’t be here, but that’s understandable.
And so in our inaugural meeting in Hungary back in November, the one thing we all agreed that we share the most in common was the asylum issue – or, you know, being more specific, the abuse of our asylum systems and the need for reform. So the problem here in the United States goes beyond, you know, those individuals who show up and make fraudulent asylum claims or even the NGOs, who are funded in part by taxpayer money, and immigration lawyers who both have combined to, you know, basically to create an industry that’s based on gaming our asylum system. And they often coach asylum seekers to provide false information on their applications.
And you know, there’s always going to be corruption in any system, right? Yet, the obstacle that we face when it comes to reforming our asylum system really is a political one, in that the fraud and abuse is occurring on a vast scale not only because our government is allowing it to occur, but in effect is perpetuating it. And most of those who are coming now illegally over the U.S. border are economic migrants. Many aren’t even claiming asylum or even making credible fear claims to begin the asylum process because the Biden administration is releasing most everyone – letting most everyone in. Bill Melugin of Fox News reported just this past Monday that three different sources from a meeting with Secretary Mayorkas he had with the Border Patrol told Melugin that Secretary Mayorkas admitted that more than 85 percent of inadmissible aliens encountered at the border are being released into the United States. And those who aren’t released likely, if they’re intent on getting into the United States still, will pay more for smugglers to sneak them in, avoiding Border Patrol, which is not so difficult given that Secretary Mayorkas has pulled agents off of the border in order to process – Border Patrol agents to process and release aliens who turn themselves in.
Publicly, Mayorkas said on Monday that those who are released are put into immigration proceedings – immigration-enforcement proceedings; these are his words – where they can make asylum claims under laws that Congress has passed, and if their claim doesn’t succeed they are removed. Now, we know this isn’t true. We can see it in the removal stats that DHS puts out. And we know that there are more than 6 million people on the immigration court dockets who are not detained, which, you know, under law they must be detained. This is a law that Secretary Mayorkas conveniently ignores. And that 6.2 million number includes those who have final orders of removal. And the number of non-detained aliens basically has doubled since 2021, from 3.4 million, I think, to 6.2 million right now. And that’s even when we know that Border Patrol is releasing people into the United States without even issuing notices to appear in court. And the parole programs, on top of that – the so-called new legal pathways for certain nationalities that the Biden administration has created, which is a blatant abuse of parole.
Affirmative asylum claims have quadrupled since fiscal – between fiscal year ’21 and ‘22. Defensive claims have tripled. It’s a total of about half-a-million new cases that were filed in fiscal year ’22 from the previous year. There’s already over a million asylum claims or asylum cases pending, and that’s only going to grow, continuing to overwhelm the courts. According to Nolan Rappaport, who’s a former immigration committee staffer, the average initial hearing for an asylum seeker is four years from the date of arrival. How many people do you think are going to show up four years after they’ve crossed the border, particularly – especially if they have a frivolous asylum claim? And as more cases are filed, obviously, that backlog is only going to grow. There’s just simply no way to deal with the number of new cases, which I would offer is exactly the plan of the administration.
Growing, too, are the costs of accommodating asylum seekers, diverting funds from providing services to legal residents. New York City is a prime example, but it’s happening all over the country. And here’s a point I want to emphasize today, that this administration – and certainly many in the media, and even those who are complaining about the migrant crisis like New York City Mayor Adams – they’re pointing to the fact that illegal border crossers, inadmissible aliens, do have the right under U.S. law to claim asylum, and this is true. But that doesn’t mean that most have legitimate claims to asylum. We’ve seen over the years that the opposite is true, and that continues to be true now.
CIS’s own Andrew Arthur has said people aren’t necessarily coming to apply for asylum as much as to access that asylum adjudication process, and that is also true. And I would just add and tweak that a bit to say it’s really our own government which is using the asylum system to justify letting almost everyone in through the back door.
The border crisis is not the result of incompetence; it’s due to deliberate and willful decision-making by those who are ultimately making the decisions in the White House. There’s an impeachment inquiry going on right now in the House for Secretary Mayorkas. And, yes, government officials need to be held to account. But removing Mayorkas isn’t ultimately going to fix the problem. Congress needs to reassert its plenary power over immigration, the absolute authority that it has over immigration law, determining who comes into the country, who may enter, and who may remain in the United States. You know, this administration clearly needs more oversight, and Congress needs to strengthen certain statutes to prevent abuse by the executive branch. And these abuses aren’t limited to this president, it’s just we’ve never seen such outright contempt for our immigration laws before.
But beyond that, Congress needs to come up with a new overall approach to asylum law because the current rubric is not adequate to deal with what we’re facing and will continue to face in the future. Even an administration which is committed to enforcing the law as it’s written is going to run into headwinds in securing the border because Congress has allowed federal judges to step in and legislate from the bench. The Flores settlement is a very good example of that.
Now, what Congress has in front it right now is the opportunity to take back control of immigration policy, and it’s an interesting dynamic that we’re seeing. The Biden administration is committed, clearly, to immigration policies that are unpopular, even among some of its stalwart base voters. We see pushback from Democratic politicians – New York City, Chicago. In Arizona, the Democratic governor has complained about what’s going on at the border there. Pennsylvania Senator Fetterman has been very vocal speaking out, saying there is a border crisis and we need to address it. You know, and making the case that we need to send tens of billions of dollars to Ukraine and Israel as part – you know, in part to secure their borders remains a political challenge for this administration.
At the same time, we have a Republican Party who is in a majority in the House – a narrow, fractious majority, but one that seems to have coalesced around Speaker Johnson’s position that there will be no funding for the government – the federal government – without border security, genuine border security. And it may very well come down to their colleagues – the Republican colleagues in the Senate whether or not they’re willing to stand with the House to demand border security or if they’re more interested in cutting a deal in order to say that they came together to cut a deal to keep the government open.
Now, I don’t know what the answer is to how all this is going to play out. We’ll find that out soon enough. But what I can tell you is what the House GOP is asking for when it comes to asylum reform and what should be a part of any legislative deal. That’s H.R. 2, the Secure the Border Act, which passed the House back in May – May 2023 – and was introduced in the Senate by Senator Cruz, and now it has, I believe, 31 cosponsors in the Senate. That’s what Speaker Johnson is saying must be included in any funding deal.
H.R. 2 would go a long way towards reforming the asylum system. It would raise the bar so that those who make a credible fear claim have to make a convincing case that they will likely be granted asylum by an immigration judge due to an actual threat of persecution in their home country, by the standards of asylum that we set forth – that is set forth in the laws passed by Congress. The credible fear bar was already very low before Biden took office. Between 2014 and 2019, 15 percent of individuals who passed a credible fear screening went on to win their asylum cases. That means 85 percent of those did not. Obviously, that needs fixing.
H.R. 2 would make aliens ineligible for asylum if they’re passed through a safe third country without applying for asylum in that country, which is the case with most of those who are now coming over the border. If someone attempted to cross illegally into the United States instead of appearing at a designated port of entry and then claimed defensive asylum when caught, they become ineligible for asylum.
H.R. 2 places limits on aliens’ ability to work while waiting for the adjudication of their asylum cases to discourage frivolous claims on the part of aliens but also to prevent our own government from using the asylum system as a way to increase the number of foreign workers coming into the U.S. labor force.
Maybe the most important change would be the requirement that DHS has to either detain asylum petitioners in the United States or have them wait south of the border while their case is being decided. That would make Remain in Mexico permanent in law. And that was very effective, as we saw under the Trump administration, in preventing illegal immigration. Those who are coming and claiming asylum aren’t going to come to the U.S. border and attempt to get in if they know they have to wait it out in Mexico, unless they are actually in genuine need of asylum.
The abuse of parole authority would also be curtailed by H.R. 2. And that’s not part of asylum law, but the same justification for the reason why the Biden administration is using parole is the same one. It’s under the humanitarian umbrella argument, right, that these people have to be paroled in because they’re fleeing persecution or poverty or whatever the reasoning is. And shutting off parole or the abuse of parole authority will close an outlet that surely would be used to channel asylum seekers into the U.S. if left open.
E-Verify would become mandatory for all employers under H.R. 2. And more funding for Border Patrol agents to actually patrol the border and apprehend illegal border crossings will be included, with money for expanded detention space. The simple logic is that inadmissible aliens aren’t going to continue to show up at the border once they realize they won’t be released into the United States. The border crisis isn’t about logistics or circumstances that are beyond our control; it’s about a lack of political will among those in charge who don’t want to stop the flow of illegal immigration.
Now, obviously, it’s a great challenge facing Speaker Johnson. But the Democrats have effectively used the power of the purse when they have controlled the House in a divided government. It’s about – you know, we’re not talking about capital gains tax rates here, right, as important as that may be, you know. What we’re talking about is national security, public safety, fiscal responsibility, the protection of American workers. This is about affirming our national sovereignty. You know, will the president be put in a position where he has to defend shutting down the government in order to keep the border open? You know, is that a political fight he can win? We shall see.
MR. KRIKORIAN: Thank you, Eric.
Viktor?
VIKTOR MARSAI: Thank you very much. Welcome, ladies and gentlemen. It’s a huge honor to be here just exactly two months after that we established together the International Network for Immigration Research in Budapest. And I just mentioned to Jim Robb before we started even that the big achievement is not to establish something but to continue to sustain it and do meaningful things. And I’m really happy to that it seems that we managed to be on the track.
We arranged that I will speak for you today about the new EU Migration and Asylum Pact, its consequences, and the Hungarian perspective. I will tell a couple of words about the current migration crisis in Europe because we are in that now currently on the other shore of the Atlantic and perhaps you are not reading daily the news about what’s going on in the territory of the EU.
Well, even if the peak was in 2015 and ’16, we could see huge pressure on the EU external borders. Last year, more than – almost 400,000 irregular border crossings happened all around Europe, and these were which were just detected. Because if you check the numbers of asylum application, more than 1 million people applied for it. So it means that hundreds – likely hundreds of thousands of people – of people managed to leak on the borders without any detection, even if we know that some of the people arrived legally and after overstayed or applied for asylum with a legal stay. And it’s important that these numbers exclude Ukrainian and other third-country refugees who arrived from Ukraine in the last one-and-a-half-plus, (slowly ?) two years. So we can state definitely, similarly to the United States, that the whole system is overburdened and actually dysfunctional since 2015.
The basic problems are the sea borders. It’s very interesting to see that it’s much easier to protect a land border with physical barriers and legal barriers and political will than to defend a sea border. It’s a huge problem in the soft underbelly of Europe. We have seen the Italian perspective and the Greece perspective.
The other problem is the instrumentalization of migration by certain actors in the last year, which it’s more and more frequent to make pressure of the EU for different political and geopolitical reasons. But it’s also true that we are lacking, in many case, the political will to stop irregular migration. And we are sending. I mean the EU and some capitals, very mixed messages, ladies and gentlemen, because it’s not possible to speak about effective border protection while in the meantime we are speaking about quota system for asylum application, which is an open gate for people who are coming. And it’s evident that the whole EU asylum system laws, and unfortunately even with the new asylum deal, will be – will have inadequate framework to stop the flow of people. And in general, we can state that, well, the new EU Pact on Migration and Asylum offers limited solution for the problems of the past while keeping a lot of bad practices.
First of all, it’s very important to underline the practical and philosophical and – sorry, philosophical conceptual problems with the whole asylum system. We have still the false premise that everybody’s entitled some kind of international protection, and we are allowing asylum seekers into the territory of the European Union, and after it it’s almost impossible to deport them even if majority doesn’t have any legal background to get international protection. It's a huge challenge in both shore of the Atlantic.
If I try to go and try to come to the United States, the border protection of the United States starts in this legal framework in the Budapest Liszt Ferenc International Airport. Because before I managed to get my border card, you know, the staff checking whether I have the legal reason to arrive to the United States. Why we are letting people just telling that, OK, I need asylum into our territories? So – and this practice is destroying and overburden the whole system.
Another big philosophical and conceptual problem is that instead of a very clear legal and practical consideration, we are using normative and moralizing discourse about this whole case. There are bad actors and good actors – people who are very cruel and states which are very brutal and cruel who try to stop these poor asylum seekers, like Hungary and sometimes the United States; while there are humane actors who try to open the borders for these very vulnerable people. While we are following this discourse and narrative and language, it’s very hard to speak in an academic framework about these phenomena, not to mention the right of asylum seeker eclipses all others. I mean, national sovereignty derives of the citizens of host countries, security considerations, et cetera, et cetera. So it’s not easy to maintain the system anymore among these circumstances. And if anybody’s speaking about, for example, the security considerations, the sovereignty consideration of the host nations, it’s very easy he gets, you know, the name of anti-something, securitizing the problem, et cetera, et cetera. So there is a very strong discrediting narration about the whole story.
What about the practical consideration and the problem of the – with the new pact and the older system? It’s very important that, actually, the safe third country concept is still meaningless in the new EU pact. It’s very far from the original spirit of the Geneva Convention. Mark, I think, will tell a couple of words about this. Because if we go back the whole establishment of the global refugee system, the main condition was an imminent and immediate threat on the life of the asylum applicants. But we find now, for example, in the EU legislation there are terms which are very, very far from the general spirit of the Geneva Convention.
I collected a couple of terms about this. One is that currently, according the law, there is a necessity connection between the asylum seeker and the – and the country in which he transferred. Which means, for example – and there is the text of the law – applicant’s family are present in that country, or whether applicants are settled or stay in that country. So, for instance, somebody leaving Afghanistan across Iran and he doesn’t have a family there, then it’s not a safe third country for them according the law because he doesn’t have a connection with Iran. Even if there is no persecution, no any threat on their life, it’s not a safe third country for him or her.
Another very important issue, that the safe third country has to maintain an adequate standard of living, should be understood as including access to food, clothing, housing, or shelter. Can you imagine, ladies and gentlemen, if you look around the world how many countries still are lacking access to the basic and elementary education for their own citizens? So the current legislation exclude dozens, if not more than 100 country, as a safe third country. And the country should – again, the safe third country should provide an adequate standard of living, emergency health care, and as I mentioned basic education for the applicant. It doesn’t exist, then it’s not a safe third country. So we are very close in the current system that it works as a welfare program more than protection for people who are in imminent threat.
There are ideas that the EU would like to process asylum application outside the EU territory, but the new framework is not good for this. Why? The authorities get seven days, ladies and gentlemen, to judge whether the applicant more or less has a chance to be eligible for real asylum or any kind of international protection. If anybody who’s working in the system knows, exactly seven days is not enough. Even, you know, the translator in some cases will not arrive within seven days to judge whether these guys are eligible for any protection or not.
I mentioned the problem of sea borders. It sounds very well that are processing asylum seekers outside EU territory, but what happen if they arrive to the shores of Italy – last year, more than 150,000? We can’t bring back to Libya, so they are already in.
And last but not least, the regulation also contains that the most vulnerable people must immediately let in – I mean, minors, members of family units. And – surprise, surprise – a big chunk of the people who arrive and seems somehow young, they confessed, oh, no, I’m below 18 years old and we are family members. On the other side of the story, we – definitely a lot of fake families.
And last but not least, about the compulsory solidarity that I mentioned you. The EU had its brilliant idea more than seven years ago as a compulsory quota system, that each member state had to accept a certain number of asylum seekers. The system didn’t work even among the member states who thought, OK, we are ready to take the asylum seekers. Now it – there’s a new system with not compulsory quota system, but compulsory solidarity, which means that the quota system is still there but if you don’t want to take asylum applicants then you can pay 20,000 euro per person. So it’s a huge burden on each member state.
I mentioned that repatriation and deportation in the whole system actually is the Achilles’ heel of the whole system. Effectiveness is below 20 percent. And even if we see that there are some efforts to enhance the collaboration with third countries to receive back their citizens, actually, there’s no any guarantee in the system that we can enforce it. And the different attempts to increase or establish collaboration with certain countries – Albania, Tunisia, or – not an EU country – but the U.K. with Rwanda – actually all failed in the different legal battles and by the attempts – and by the attacks of different pro-immigrant groups.
And last but not least, again, border protection is underlined in the whole new Migration Pact, but actually still today it’s not allowed that from the common EU budget to get fund for physical barriers. Drones are a very important part of any border protection, but just simply a drone will not stop anybody to cross the border.
Very briefly about the Hungarian perspective, we are in the crossroad and surrounded by EU member states and stable countries. This is why I raised the issue of safe third country. You can see Romania, Serbia. Croatia is a(n) EU member; there’s no civil wars, no persecutions there. Still, finally, even if the – even if Hungary judged that these are safe third countries, anybody who arrived across these countries will be sent back to Serbia or Romania because there’s no persecution – Romania is also an EU member state – no, it was rejected by the Court of Justice of the European Union, and now Hungary got a huge penalty because, according to current legislation, it is unlawful because of certain reason. This is why I telling you the whole system is under collapse and doesn’t work.
And what is supporting now by the new legislation is actually the practice of asylum shopping. We are letting asylum seeker to decide where they would like to go. Why?
And last but not least, Hungary – and the countries always blame that we are not ready to accept anybody who need asylum. No, it’s definitely not true. If you follow the news, Hungary opened its border for Ukrainian refugees, but because of a very simple reason: We are the first neighboring country. Ukrainian refugees didn’t cross half a dozens of different countries, including EU member countries, with perfectly or more or less perfectly working asylum system. No, they arrived to the safe third countries, which was – Hungary was the first one. And more than 1 million Ukrainian refugees arrived to Hungary, even if most of them later move towards to other EU countries.
So, actually, my concluding remarks are that, no, the new Asylum Pact will not solve our problems. It provides very little solution by keeping bad practices, sorry, and we are still very far for the original spirit of the Geneva Convention and the current asylum system – international asylum system works much more as a welfare program than real initiative which can protect people in danger.
Thank you very much.
MR. KRIKORIAN: Thank you, Viktor.
Nicolas?
NICOLAS POUVREAU-MONTI: Thank you, Mark.
Ladies and gentlemen, first of all, I would like to thank our friends and partners from the Center for Immigration Studies for organizing this event as part of our newly formed International Network for Immigration Research on this crucial topic of asylum crisis in Europe and America for, indeed, we are talking about a crisis as far as I’m concerned.
Adding to Mark’s, Eric’s, and Viktor’s contributions I’m going to deal shortly with asylum crisis in France as an example of what most of Western Europe is currently going through.
First of all, it must be said that the right of asylum has a longstanding tradition in France more than in some other European countries. It’s a right whose understanding has evolved considerably over time. Traces of it can be found as far back as antiquity.
We know that later Christian asylum was enshrined by the Council of Orleans in the year of 511. Then from the French Revolution onwards the right of asylum was intended to protect those who defended freedom abroad.
For example, the revolutionary constitution of 1793 stated that, quote, “The French people give asylum to foreigners banished from their homeland for the cause of liberty. They refuse it to tyrants.” That is the end of quote.
So as you can see asylum was then seen as a political instrument which was used by decision makers. While it was granted to friends it was refused to enemies. From the early 20th century onwards the number of refugees and stateless people increased a lot in Europe because of wars, because of border movements, because of some internal political events such as the Russian Revolution, and as you know – and Mark will deal about it in a longer extent – the international community then developed agreements for people who had lost the protection of their state of origin, the most important of those being, of course, the 1951 Geneva Convention within the framework of the United Nations.
So while it was initially focused on war refugees and political opponents, the granting of asylum protection has gradually been extended to include grounds for persecution based on individual characteristics such as origin, race, religion, opinion, or sexual orientation. And nowadays in Europe under the influence of EU law Viktor just talked about, this extension is continuing. And asylum protection keeps integrating new kinds of motives, such as the risk for death penalty, inhuman or degrading treatment, serious threat linked to armed conflict, et cetera.
So this continuous extension of the conditions governing the right of asylum has ended up constituting a major immigration channel in France and in the rest of Europe, which is now completely out of political control. We are now a long way from the French philosophy of asylum.
Today here are a few examples of some kinds of people who can be entitled to asylum in France: Chechen Islamic militants, Turkish conscientious objectors, Nigerian ex-prostitutes, women belonging to African ethnic groups who practice female genital mutilation, gay people coming from a Muslim country, shopkeepers who got caught up in neighborhood conflicts and who cannot claim the support of the authorities, stateless people, of course, as well as a large proportion of countries such as Sudan or Afghanistan.
All of them have the right to asylum in France. One can also expect that some sort of climate refugee status could also be granted in the near future. As you can understand, these lax conditions governing the granting of refugee status explains the growing influx of asylum seekers to France and more broadly to Europe because obtaining asylum means that you are not only receiving residence permits.
In France it’s the first time 10 years – 10 years resident cards for refugees for one’s self and their family, but also it means that you will benefit from advantages, material reception conditions such as asylum seekers allowance and accommodation, then the right to social security and all the assistance provided for nationals.
So, of course, all of this explains the striking rise in asylum claims registered in France. Between 2009 and 2022 we have witnessed an increase of 227 percent in the annual number of first-time asylum claims registered in France. We will get the data for 2023 by the end of January. But according to all the indicators we have so far the number of asylum claims registered last year may have been 8 (percent) to 10 percent higher than in 2022. So if this is really the case 2023 will become the new record here as regards asylum claims in France.
The main countries of origin represented in these first-time asylum applications are Afghanistan, Bangladesh, and Turkey. So, of course, seeing Turkey in this list may trigger some surprise insofar as this country still holds an official status of candidate to the European Union.
Then comes a number of various French-speaking African countries, the most frequent one being the Democratic Republic of Congo, who all together form a large part of asylum seekers in France.
The acceptance rate for asylum applications in France is now around 40 percent. However, even if a slight majority of asylum claims are rejected 96 percent of those rejected asylum seekers remain on French territory afterwards according to the Cour des Comptes, which is France’s highest public audit institution.
This means that, as Viktor said, when you apply for asylum in France as in many other European countries you are pretty sure you will be able to stay forever whether your claim is accepted or not.
It has to be stated that this upward trend in France is not an exception in Western Europe at all. I’m just going to give you three quick national examples.
Over a 10-years period between 2012 and 2022 the annual number of asylum applications registered in the Netherlands has risen by 267 percent. In Italy this same number has risen by 350 percent over the same period, and in Spain this number has risen by 4,842 percent – I repeat, 4,842 percent. That is to say that has been multiplied by almost 50 in 10 years.
Now, if we want to enable our democratic regime to deal with this and to reform the asylum system its people want there is no other choice in the first instance than to denounce the 1951 Geneva Convention – I will let Mark speak longer about it – or what amounts to the same thing, the 1967 New York protocol which extended its temporal and geographical scope.
But in the current state of EU law it is not permissible or it would remain ineffective for the member states of the European Union because insofar as Article 78 of the treaty on the functioning of the EU is concerned member states commits themself to develop a common asylum policy which, quote, “must be in conformity with the Geneva Convention of July 1951 and the protocol of January 1967 relating to the status of refugees as well as with other relevant treaties,” end of quote.
Therefore, collectively, of course, the European Union could modify its own treaty or at the very least adopt more restrictive, perhaps, provisional measures to respond to an emergency situation which is a reality since at least 2015.
As things stand there is probably no consensus at the moment for this at the European level. However, without a change of this kind in EU law or at least a green light from the European institutions to adopt these restrictive emergency measures a member state cannot escape these constraints of asylum law which has been transformed, as I said, into the right to asylum for immigrants however many of them manage to demonstrate or make believe that they tick one of the boxes which make them allowed to benefit from asylum.
A nation state government in Europe which like Hungary wishes to control migratory flows should therefore, unless it decides to leave the European Union, pull out all the stops to radically modify these European treaties or perhaps to negotiate for itself some sort of opt out from this part of EU treaties.
One might think that a country such as France would have the means to put pressure in this direction because there is a growing call among many European countries for reform for asylum and not just in Hungary or Poland. For example, the left-leaning Danish government wants to reform the European asylum system and is campaigning against the reception of asylum seekers on European soil, preferring reception in the centers outside the union you just mentioned, Viktor.
Therefore, to conclude shortly, all of this shows that asylum must be dealt with as a political issue, a democratic issue, which should be subject to democratic accountability rather than as some sort of overwhelming principle which take no accounts of people’s will nor of the national interest, and I hope this panel will play a role in this direction.
MR. KRIKORIAN: Thank you, Nicolas.
I wanted to sort of pull back from the particulars that my colleagues have addressed and make the case that there is a fundamental incompatibility with the very – with the very system since World War II of asylum with the reality that there is no practical limit to the number of people who could qualify for asylum even under more narrow definitions and who want to live in more prosperous, orderly, stable countries. And ultimately, my contention is that it’s necessary – the only way to get a handle on this is to end asylum as it currently exists.
Now, this is just me saying it. The members of our network are not responsible for what anybody else says, so don’t hold this against anyone else. This is just me. But I just don’t think that there’s any – ultimately any conclusion other than that.
Now, I’m not going to go back to 511 A.D., as much as a fan I am of antiquity. But we started with – we are here because of the 1951 convention relating to the status of refugees which was a post-World War II beginning of the Cold War measure related only to Europe only to people who had already been displaced by the Red Army takeover of Eastern Europe, and as Nicolas said in 1967 the protocol relating to the status of refugees applied those same rules to the whole world and applied them prospectively for anybody in the future and that set the stage for what we are dealing with and it – asylum as it’s laid out in the U.N. treaties represents a surrender of sovereignty by nation states.
It’s a pledge to admit – to let foreigners decide who’s going to live in your country instead of you. It turns – it reframes immigration as a right rather than a privilege and that is, in a sense, the core of the problem here.
Now, for the first four decades of the post-World War II asylum regime it was a nonissue. It’s only a little bit of an exaggeration to say that it really only applied to a few Russian ballerinas and people who were able to fly balloons over the Berlin Wall. It was a small enough issue that that surrender of sovereignty that it represented wasn’t salient.
But with the end of the Cold War that’s changed. Not just the end of the Cold War but combined with the massive population growth in the third world, the dramatic drop in the costs of transportation and communications and, frankly, the post 1960s loss of cultural self-confidence of the leadership classes in much of the developed world has – have all combined to make asylum and the limits on it that are in the Refugee Convention – because it’s not a blank check, there are limits on who this applies to – has made all of that essentially meaningless.
The president of Finland made a point that Nicolas made when he was visiting Poland late last year and both Poland and Finland are dealing with refugee issues instrumentalized, as Viktor puts it, by Russia and Belarus to bring Middle Eastern illegal – well, they’re not illegal. They let them in but they let them in on condition that they try to sneak across the border and become the EU’s problem as sort of a – using them as a weapon against the EU.
The president of Finland said deportation of migrants who don’t meet the criteria for asylum has become impossible. So entering the border means you stay in that country if you want to and that’s the situation that not just Europe but the United States and Australia and Israel and even Mexico now are dealing with, and the reason for this is because asylum has become a kind of right and incorporating that into domestic law means that attempts to deport illegal immigrants who then claim asylum will be bogged down in courts for years as lawyers and activists and judges endlessly debate how many particular social groups dance on the head of a pin.
This judicialization of immigration policy means that the asylum system as it exists has to end. As a 1980s film put it or to reframe the quote, the only way to win is not to play the game. Asylum by law needs to be unavailable to people who cross a country’s border illegally, and not just asylum because for those of you who follow this you know that asylum is just one of the ways that someone claiming persecution can stay here.
There’s something called protection under the convention against torture which, like many of these broad international agreements, is comically – includes among its signatories places like China and Pakistan where they obviously are not particularly concerned about it, and even there’s something called statutory withholding which is a measure that is entirely on us and not based on international law.
But the existence of these avenues within the law that enable illegal immigrants to essentially kind of force themselves on us mean that changing law is going to require withdrawing from the Refugee Convention and the protocol and then developing the political will, first, to do that and then to change the national law.
In a sense all of the countries grappling with this asylum issue are going through something comparable to the stages of grief. There’s this concept of there are different steps in dealing with grief of denial, anger, bargaining, depression, and finally acceptance and we’re at the beginning of this process of going through the stages of grief, if you will, to deal with or to acknowledge the fact that the post-World War II asylum system is dead, in a sense. It’s not sustainable.
Now, different people in different countries are at different stages where, you know, denial, anger, and bargaining is where various countries and various people are and part of that, if you will, the bargaining stage of grief is a lot of the things that we are talking about here on Capitol Hill as well as in Europe, things like remain in Mexico, which is an essential and very useful reform put in place by the Trump administration. Other things that Eric had gone into about the various provisions in H.R. 2, the raising the bar for credible fear, which is the initial screening interview to see whether you might be eligible for asylum. The safe third country agreements that Viktor talked about.
All of these things are useful, in a sense, half measures and I don’t mean this in any way to denigrate them but they are sort of the bargaining stage of grief, trying to come up with a way to keep the post-World War II asylum regime but make it workable, and ultimately I don’t think that’s possible.
They are – they will always – a lot of them, first of all, will be administrative changes. Can always be reversed by subsequent administrations and ultimately we need to change the whole approach we have to asylum and essentially jettison it.
And so the – what I would suggest is the way we are – eventually when we get to the stage of acceptance illegal immigrants are simply going to be barred from asylum. Asylum essentially won’t exist, but on its own that doesn’t solve the problem because there will always be people who will immigrate illegally and who may be – even if they don’t make an asylum claim we either don’t want to or can’t send back.
There are countries that won’t accept deportees. There will be people always who come who really we don’t want to send back to – who will be, you know, potentially tortured. And so we need to combine both an end to the asylum regime but adopt one of the approaches sort of in the bargaining stage of grief, if you will, which I call remain in Rwanda, to sort of build on the remain in Mexico idea.
And I didn’t just pick Rwanda. I mean, obviously, it’s been referred to here before. But Denmark and Britain followed Israel’s lead in coming up with an agreement with Rwanda to send illegal alien asylum seekers to Rwanda, not like the remain in Mexico approach where you still get to apply in the U.S.; you just have to wait in Mexico.
The point of, again, what I call remain in Rwanda is that you don’t even get to apply in the state that you infiltrated illegally. You get to apply in Rwanda or anywhere else you want to but that’s where we’re going to send you.
It’s been stopped or discontinued by judicial opposition, by legal fiat both – in Israel they actually ran it for a number of years until their supreme court stopped it. In Britain and Denmark it was – it hasn’t even gone through although the British prime minister has said he’s going to go through with it anyway regardless of what their supreme court said. We’ll see how that works out.
Both of them were inspired by Australia’s Pacific solution where they said anyone who comes – any boat people who come there – and this is dealing with the issue of sea borders rather than land borders – even if they’re drowning they’re picked out of the ocean or what have you but that does – but they’re never allowed to enter Australia. They were sent to offshore island holding facilities from which they could then apply for asylum anywhere else if they wanted to.
And so just to sort of – I want to have time for questions but in a sense what I’m envisioning is for the United States anyway, you know, remain in Rwanda for people who are from Africa but you need remain in, say, Paraguay for people from Latin America and then remain in Mongolia for people from Asia.
The point is this is – ending asylum doesn’t mean we just sort of erase something and the problem goes away. People are mobile. There are going to be people we are – don’t want to or cannot send home so it’s going to require active diplomacy and it’s going to cost a lot of money and, you know, bribes and what have you in order to develop and constantly renew and refresh a network of countries that we can send people to who illegally come into our country.
And, frankly, once that’s going the number of people trying it is going to be small because why bother to spend all of that money, take all of the risk involved to, you know, fly from Tajikistan to Istanbul to Dakar to Quito in Ecuador and then walk or take a bus all 2,000 miles up to the U.S. border when you’re just going to end up in Mongolia anyway.
So the point is not that these countries are going to be coping with the massive numbers of people as we are but rather that by removing the incentive we clamp down on the phenomenon altogether.
So that’s where I wanted to end my comments and we have some time for questions. One of the questions we already got. I wanted to – I thought this was useful relating to something that Viktor had said and I just referred to. Is there – again, in my – this is my part of the question. This is sort of a half measure.
But is there a way that Europe could deal with maritime illegal immigrants who – you know, the smugglers bring them out on rickety ships or not even ships really, rafts sometimes. The thing falls apart. The people are drowning.
Obviously, European – Italian authorities usually have to rescue those people. I mean, you know, this isn’t – the point here is not to kill people. But then once they’re rescued it’s kind of game over. They’re already in the EU and you’re stuck with them. Is there a way to deal with that, that sort of inevitably inevitable phenomena?
MR. MARSAI: Yeah, they are constant thinking how Italy can manage this situation mainly under the current government and it was just a couple of months ago when Rome made the deal with Albania even if not a Pacific Island or Mongolia, but to bring people who was picked up in the sea and they didn’t reach the shore of Italy. Then go to processing centers to Albania for four weeks. It’s a fast check whether they are eligible for – or they have real chance to get any form of international protection and then they transfer to the Italian mainland and the whole asylum processing going there.
So they made the deal. In this case not Italian but the Albanian high court decided that it’s against the constitution of Albania. So there’s still a debate whether they can manage to or not. We’ll see.
So Rwanda is only one issue, but there are constant thinking even for – from the government of Germany how they can do something. And I just came back from Kenya early December. Austria also examining the possibilities and the negotiation with Rwanda.
So we will see what will happen. But the ultimate question is that what will happen to people even if in the processing center after four weeks – (inaudible) – OK, they are – it’s impossible to get any asylum, what will happen in Albania so how Italy can bring them back? So until there’s no strong negotiations and agreement with the countries of origin, it will be very hard to manage it.
MR. KRIKORIAN: There’s a question for Nicolas. What impact will the new French law that apparently restricts immigration have on the asylum process?
MR. POUVREAU-MONTI: None, to answer quickly.
MR. KRIKORIAN: OK. (Laughter.)
MR. POUVREAU-MONTI: Because as you know, Mark, asylum is mostly ruled by international treaties. So there’s nothing on asylum in this piece of legislation because there cannot be anything under these treaties.
I know this bill is sometimes referred to as being restrictive on immigration. Actually, it focuses on, like, 1 percent of the immigration issue. It will make it easier for the French administration to deport some foreigners who have committed serious crimes. So, of course, that’s always good to take.
But, I mean, the big numbers of immigration are not addressed at all. I mean, there’s nothing on asylum. There is nothing on family-based immigration, which is still the most generous in France. There is a special derogatory agreement between France and Algeria which makes that this piece of legislation will not be applied to Algerians, whereas they are currently the most numerous immigrants in France. So all these voids put one after the other will make this piece of legislation ineffective on the whole.
MR. KRIKORIAN: Interesting.
Eric, a question for you. If you agree that Congress needs to reassert its prerogatives over immigration but what do you do when a lawless administration like the current one just refuses to implement the law in good faith even if we changed the law?
MR. RUARK: Well, that’s a good question. It’s one that goes, you know, beyond the immigration policy arena.
But, you know, what we’re seeing now the levers that the GOP has when it comes to dealing with the Biden administration is power of the purse, right, because they do need money to operate and that’s the big fight that they’re having and what Speaker Johnson is saying we’re not going to fund the government if you continue these policies, or if you don’t agree to stop these policies you’re not getting the funding.
So the power of the purse is real. It’s just we – I can’t remember the last time we’ve seen the GOP utilize it, at least carry it out. We’ve seen threats and we’ve had government shutdowns but we haven’t been in a situation where they’ve, you know, stayed wedded to that position and really gotten concessions on immigration.
So that is the one thing that they do have. But when we have a president who won’t enforce the law, I mean, that’s a constitutional issue and lots of people aren’t treating it as a crisis. You know, it’s a policy, you know, horse trading sort of thing.
What are you going to give us for border security? Well –
MR. KRIKORIAN: In exchange for enforcing the law that’s already on –
MR. RUARK: In exchange for enforcing, yes, and that’s – we’re at a bad place, I guess you could say.
MR. KRIKORIAN: So one last question and this was specifically about Italy but I think it applies to the U.K., too, that the prime minister of Italy ran on a kind of hawkish immigration platform and yet she’s pushed pretty liberal immigration policies. Likewise, the whole point to Brexit was to reduce immigration and once they got out of the EU immigration has dramatically increased.
So, I mean, in a sense it’s related to the question for Eric is what do you do with a leadership class that doesn’t want to actually limit immigration? Any thoughts? (Laughs.) I mean –
MR. POUVREAU-MONTI: OK. Well, I think the cases of Italy and Britain are quite different one from the other. On the case of Italy, it is clear that the Italian government is being blackmailed to some extent as regards a wide – a wide range of EU fundings which are – which should be directed towards Italy but which the European Commission threatens to uphold, to suspend, if Italy does not apply the immigration policy Brussels wants.
On the other end the case of Britain is quite different. I think there has been some extent of treason from the post-Brexit conservative government in Britain which has won the last parliamentary election on the platform of reducing immigration, thanks to Brexit.
But, of course, the Conservative Party in Britain is also the party of big business and there are strong business interests to keep bringing in even more cheap labor. So I think like in the case of Italy it’s all about blackmail. In the case of Britain it’s more about political duplicity, let’s say.
MR. KRIKORIAN: Interesting. Well, thank you. I want to respect people’s time. Oh, I’m sorry. Yeah, go ahead.
MR. MARSAI: Just very briefly. Ladies and gentlemen, I think there is huge differences between irregular illegal immigration to the United States and Europe because still – and I know, and we are speaking about this whole asylum issue. Still in the United States it’s a labor issue and most of the people who are crossing the border or it was a couple of years ago they wanted to go to the labor market, illegally working, getting money, sending back, et cetera, et cetera.
But in Europe and in the European Union since the ’90s it’s a humanitarian issue. So people who are arriving majority of the asylum seeker(s) they don’t come to get a job in Europe and go to the labor market, et cetera, et cetera, because the promise is if you are there you will get international protection, social help, a lot of – you know, a network which supports you in Europe and actually we had many interviews, mainly in Scandinavian states but others, that actually people who managed to get some protection they started to go to the labor market and after they quit because, OK, they got 30 percent less money than go to work eight hours.
But the final decision was, OK, I will not get, I don’t know, 7,000 dollar money, just 5,000, but for this money I don’t have to do anything. I have four kids. I have the refugee status. So it’s enough for me.
And this is the problem, that it’s very evident that we are wasting our money for people. It will not solve any challenges of the European labor market, the aging population, et cetera, et cetera. And I think this is a big difference between the legal migration now towards Europe, because then we are deciding, OK, it’s an IT guy or it’s a nice guy who will be a good waitress and – waiter and he definitely want to come to work in Germany from Kenya, et cetera, et cetera, and if he fail he will not get the social protection and the social money. Why do people come as asylum seekers and get some protection? We provide them so much money that it’s – that the labor market actually is not competitive for them to go there.
MR. KRIKORIAN: Interesting. Thank you.
I want to wrap it up here. I appreciate everybody coming. I appreciate our guests’ comments. This is going to be on our website at CIS.org. And we have some lunch here for those of you who would want to partake and, hopefully, we will be having future events. The CIS itself will be having future events but maybe also as part of under the umbrella of the International Network for Immigration Research as well. Thank you. (Applause.)