The video and transcript are now available of a recent panel discussion sponsored jointly by the Center for Immigration Studies and the Hungarian Migration Research Institute, examining international asylum law, its application in both Europe and the United States, and its impact on national sovereignty. With the Russia-Ukraine conflict raging and with millions of refugees potentially fleeing Ukraine, it is the perfect time for serious analysis and conversation about current policies that indiscriminately provide benefits to all border-crossing strangers versus more-targeted policies that would be more consistent with the spirit of the original international refugee agreements.
The European Union experienced the recent weaponization of migrants by Belarus, as well as by Mediterranean neighbors, triggering a willingness to consider a security-first approach to migration. Now that a genuine refugee crisis is unfolding on its doorstep, the EU has responded with one voice, including even Hungary and Poland, which are the toughest on irregular migration. Hungary itself has already opened its borders to nearly 200,000 refugees since the conflict began in next-door Ukraine, making the perspective of Hungarian migration experts particularly relevant.
Scholars from the Center and MRI examine immigration laws and policies that are being swallowed by the asylum exception and provide solutions to “The Hijacking of Asylum.”
Panel 1: The Hijacking of Asylum
Viktor Marsai, Research Director (MRI)
The Soft Underbelly of Europe under Siege – The Instrumentalization of Migration by the EU’s Mediterranean Neighbors
Todd Bensman, Senior National Security Fellow (CIS)
The Almost Familial Tie between Asylum and Terrorist Infiltration
Szabolcs Janik, Operations Director (MRI)
Blackmailed by Europe’s Last Dictator – The 2021–2022 Belarus–European Union Border Crisis
Panel 2: Responses in the U.S. and Europe
Kristof Gyorgy Veres, Andrassy National Security Fellow (MRI)
The Empire Finally Strikes Back? – The Response of the Member States and the EU to the Instrumentalization of Migration
Andrew Arthur, Resident Fellow in Law and Policy (CIS)
Biden Administration’s Attempts to Expand Asylum
Mark Krikorian, Executive Director (CIS)
Asylum: An Idea Whose Time Has Passed
MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies.
And we are doing this panel – these two panels today because the asylum issue really is not just a niche issue to immigration. Often that’s, I think, the way it’s perceived; it’s this kind of wonkish thing that’s, you know, part of the immigration debate. But in fact, the asylum issue has come to swallow up the entire immigration debate. It’s, in a sense, almost the most important part of the immigration – of immigration policy that people don’t really focus on because it serves as a kind of loophole or exception for all of the rest of immigration law. I mean, we can have – our immigration law is arguably the most – after the tax code, the most complicated and convoluted part of our immigration system, and yet if you walk across the border and say the magic words of asylum it’s all kind of moot. And so we thought it was an important issue to focus some light on – extra light on. And, obviously, there’s been a lot of news both at our southern border and at the EU’s eastern and southern borders that relates to the asylum issue. So we thought this was a(n) opportune time to talk about it.
And we have some highly qualified people to talk about it, both scholars from the Center for Immigration Studies but also some scholars from the Migration Research Institute in Budapest, which is a migration think tank. It’s a(n) institute that researches migration, as the name suggests. And they’re also participating in this, going to be talking about the European challenges with regard to asylum. And our CIS staff will be talking about the U.S. issues.
So we’re going to have this in two panels. The first is, as the title of the event suggests, hijacking of asylum. The second panel will be the responses, both in the U.S. and Europe.
And on the first panel we have Viktor Marsai. I’m trying to pronounce that in Hungarian to be sort of correct. He’s the research director of the Migration Research Institute, and he’s going to be talking about the instrumentalization of migration in the Mediterranean area, so the southern border of Europe. And instrumentalization, we understand the word but in a sense in this country we’d probably say more weaponization, at least metaphorically. And that, I think, is what we’re talking about here. Then Todd Bensman with CIS will be talking about the tie between asylum and terrorist infiltration. And then Szabolcs Janik, who is the operations director at MRI in Budapest, will be talking about the asylum issue as it most recently came up on the eastern border of the EU, where Belarus and Poland came to the fore.
So they will each give a presentation. Please wait for – think about questions and we’ll have Q&A after their half of it. And then, without a break, we will do musical chairs, quickly switch chairs, and we’ll do the second panel. And this is – our own research director is very concerned about this: lunch will be after the second part of the panel. (Laughter.) So, Viktor, you can either come up here or stay down there, whatever suits you.
VIKTOR MARSAI: Well, thank you very much, Mark. Ladies and gentlemen, it’s a pleasure to be here in Washington and participating in this joint workshop between CIS and Migration Research Institute. Ten minutes is a very short time, but I would like to try to keep it. So during my presentation, I would like to speak a little bit about the background of this, the soft underbelly of Europe, why it’s a challenge for Europe as a continent and the European Union as an institution – how we can speak about the instrumentalization or weaponization of irregular migration in the southern flank of Europe and what is the status of the phenomenon now.
I think, first of all, it’s very important to have a short and quick history overview because history matters. And it’s very important that this whole region, the Mediterranean region and both the northern and the southern shores of the Mediterranean, belonged to one integrated system during the Roman Empire called, you know – called Mare Nostrum, you know. And in spite of the collapse of the western Roman Empire in fifth century, it remained an intact economic and partially political integration until the conquer or the Arabs in the ninth century. Later colonization – European colonization revitalized this connection, and the Second World War demonstrated the soft underbelly of Europe, called by Winston Churchill. And it was not accidental that the troops of the United States and the allies started their campaign against Germany not in western front in Normandy but in the soft underbelly, which was much more amenable for these attacks. And recently, the last three decades both NATO and EU concentrated on the region in the form of different partnerships and dialogues. So it’s very important to keep in our mind that, in spite political, you know, the northern part and the southern part of the Mediterranean are divided in many aspects, there is close integration between them.
Some words about the sea borders. It’s very important to underline that the protection and the defense of sea borders are much more complicated than the defense of the land borders, because it’s not possible to erect any fence in the mid of the Mediterranean Sea. I brought you some numbers. The total length of the Mediterranean Sea is not so big – it’s 4,000 kilometers – but if we are watching the seashores and that border line of different countries, it’s a huge, huge challenge to protect them. Just have a look for Greece, which is – comparing United States, it’s a small country, 100,000 square kilometers. But it has more than 13,000-kilometer-long coastline which have to be protected from illegal migrants. Actually, it’s a mission impossible for both Greece but we have a number from Italy. It’s not possible to control. So huge sea border areas.
About the flow of irregular migration, we saw an increase in the early ’20s, mainly from the – from North Africa, and since the beginning the blackmailing of EU or certain member states happened in this Mediterranean context. The first country which used it was Libya and the second was Morocco. Morocco used it to get fund from the European Union. And Libya, you know, in the – in the ’90s was in a – (inaudible) – and was sanctioned by different countries. And Qadhafi used instrumentalized or weaponized irregular migrant to make pressure on Italy and the European Union to come out from the – (inaudible) – and became a – (inaudible) – in the international system. So it’s very important because the real question in this context considering the lengths of this border line and the blackmailing potential that how EU can cooperation with these gatekeepers on the southern shore of the Mediterranean and how we can pursue it, convince them to stop the arrivals.
Just some words about the numbers. You can see the number of illegal border crossing in the European borders, comparing with the American data perhaps it’s not so high because at the peak in 2015 you can see it was almost 2 million. If United States kind of it was a similar number in the case of the United States, but annually, it’s between 1 and 2 million. In the case of Europe, it’s not so high. Last year was almost 200,000. But what is very important is the potential, that how many people were stopped and how many people were waiting for the crossing towards Europe.
In Egypt, according rough estimations, there are at least 6.5 million foreigners and many of them want to come to Europe. In Libya, because of the civil war it’s very hard to estimate but there are between 800(,000) and 1.5 million people. And in Turkey, just the Syrian, Iraqi, and Afghanistanian – Afghan, sorry, refugees and asylum seekers all together is 4.5 million people. So if you – if we sum up, it’s more than 10 million people who somehow would like to reach Europe who are foreigners in these country.
But very important also to emphasize that the whole story is not totally about these asylum seekers in these countries, but also the citizens of these countries – Egypt, Morocco, Algeria, Tunisia. Many of them – millions of them – would like to come to Europe. And if we are checking the numbers in these illegal border crossing numbers, actually, the biggest portion of people is coming not from sub-Saharan Africa, which is the concept in Europe that now most people coming from sub-Saharan Africa to Europe in this southern border. No. Actually, the so-called transit countries, from Egypt to Morocco, are really the countries of origin from illegal migrants and asylum seekers.
We have to underline also that according to the official estimations and official data, the coast guard of these nation also contribute to stop the number of illegal crossings. So I might show you this 200,000 people in the last year, but according to rough estimation another 200,000 people were stopped in the sea. And there are some numbers from Morocco and Libya which were also stopped during the crossing. So this is the reason why “just” 200,000 people reached Europe across this lane.
Some words about numbers – about the certain countries. We can observe two attitudes, some kind of stick-and-carrots politics toward the European Union and some more closer cooperation.
Turkey and Morocco definitely use this stick-and-carrot politics. If they want to gain something, then they are lifting the control of the border, which happened last year in Melilla when they just watched and 8,000 people reached the Spanish enclave, you know, some hours. And it also happened in the case of Turkey in February 2020, when Mr. Erdogan decided that they won’t protect anymore the border of Europe, and within days tens of thousands of people started to – fled towards Greece. Fortunately/unfortunately, it was just the time just before the COVID-19, and when COVID-19 arrived it was evident for Ankara that they had to stop this flow because it could cause a lot of harm between the relations.
And there are some countries which try to cooperate, but a much deeper way. I think the most important is Egypt, but we have to mention currently – so currently, Libya and Tunisia. But we have to keep in our mind also that they have – with the exception of Egypt, if we have a look at Tunisia and Libya, they have very limited capacity to stop illegal crossing.
And just some words about the potential, what countries can get if blackmailing the EU. The new Global Europe Initiative for the next budgetary term of the European Union, the EU will offer almost 80 billion euro for this cooperation – 80 billion euro. You can see the distribution here. And if you – you won’t find any words about migration in this context, but if you have a – have a more profound look, you know, it is making workplaces, digitalization, technical, climate change, it’s actually aiming to reduce the potential of number of arrival. It’s a huge, huge amount of money, and a big portion of this money is not fixed. About 60 billion euro is for a certain project and 20 billion is just the background for any emergency events. So this is the money which can be easily utilized for any actors.
And last but not least, it’s very important to, in the – in the shadow of the Ukrainian war to mention the geopolitical competition in the southern flank of Europe/NATO. Turkey, which is displaying this stick-and-carrot politics, has a very strong presence in Libya, and there are many considerations that at one point perhaps Turkey can play the same game in Libya to opening the border for irregular migrants, what happened – (inaudible) – Turkey. We have to mention the increasing Russian presence across economic groups and Wagner Groups, the mercenary groups, in Libya, and money. And we shouldn’t forget the whole Sahelian cases, which has come closer and closer to Europe. And I mentioned it’s currently mostly North African peoples coming, but considering the huge humanitarian and economic and political crisis in the Sahel it’s – there is definitely shift in the last years. So, actually, Europe has no other chance than to try to cooperate somehow to – with these gatekeepers which is ready to blackmail it if they don’t get enough money.
So I think my time is over, so thank you very much. And if you have any question at the end of panel, I’m ready to answer for these. Thank you. (Applause.)
TODD BENSMAN: OK, I’m going next. I’m going to talk about the nexus between asylum and homeland security or national security, and there most certainly is one both in Europe and in the United States, and they’re kind of the same. We have deep-seated, systemic flaws – structural flaws – in the asylum processes in both regions that enable various actors to penetrate into countries and conduct attacks. That could be terrorists, particularly in Europe, and also, you know, MS-13 gangsters crossing our own border that are able to exploit these structural flaws and make their way into the country and do their thing.
Luckily, we have a perfect laboratory experiment that we can study and learn from in Europe, particularly from the 2015 – 2014 to 2018 mass migration crisis which we at CIS were able to study and we produced some information about this. Really, there are two issues structurally with this. One is that the asylum systems – which, by the way, they’re very similar across the developed world the way they work and what the thresholds are for people to claim asylum crossing the border and then to wait inside the host countries. One is that there are, especially during mass-migration events, emergencies, that it builds backlogs that are incapable of maintaining a connection with the migrants for months and years at a time, which enables them to then be able to plot and kill. And two is that the asylum systems are not built in any way to detect fraud and to detect a potential problem with a migrant. They’re more built to usher people into the host countries and let them – let the system work, and any kind of a problem would have to be serendipitously caught by intelligence agencies or law enforcement or maybe somebody just phoning in a tip – see something, say something. So those are the two ways.
What we studied in Europe was the particular timeframe from 2014 to 2018, which was, you know, the period of a mass-migration event. We had, you know, several million migrants cross through borders and reach the interior of, you know, Germany and France and, you know, the – you know, Finland and Sweden and everywhere else, and the U.K. And then after that we saw a range of very bloody terror attacks by these migrants. Nobody really took the time to, you know, quantify how many, so we took a stab at it at CIS and found some interesting – let me see this thing. Yeah.
So we looked at, in that period – and of course, this is maybe a year and a half, a couple years ago. So migrants who crossed the border into Europe have continued to attack from one end of the continent to the other without much pause. So there are a lot more, but still I think the findings are holding pretty well. So I’ll take a quick stab at some of the numbers here for you to just kind of give you an idea.
But, first, understand that the common European asylum system at this time allowed for recommended six months to – from entry to adjudication. About six months was the typical. I don’t think it was a requirement. But in the mass migration that followed, that number moved to about 11 months on average, and that’s not including the appeals processes afterwards. So the appeals processes could extend that far, far beyond the 11 months. And of course, the 11 months is plenty of time to plot and attack.
And so what we looked at was the period – the amount of time lapse between entry and either attack or arrest, because thankfully not all of these individuals were able to succeed in their attacks. This is kind of a – this is actually an interactive map. If you go to our website, you can – you can click on any one of these. But it gives you a pretty good idea of where a lot of it happened, and of course it’s going to be where the most migrants were settled/resettled: in Germany and France. We had the Paris attacks of November 2019 and then the Brussel(s) attacks a few months later, and those were all conducted by either European citizens who were – had been in Syria who were posing as migrants with fake IDs or they were actually ISIS operatives of other countries who applied for asylum and got in and took their good time – a couple months – to get the weapons together and all the rest.
So let me just – what we were able to look at, of the 104 identified there was only really good data on about 55 of them to be able to reach conclusions. Yeah. And here’s a couple datapoints for you. We found that in 33 of the cases the time that elapsed between entry and arrest or attack exceeded the European Union’s six months adjudication period. In 15 of those cases the time lapse was more than twice that, exceeding 15 months. And in 13 of the cases the time lapse was 19 to 31 months. In other words, when there are backlogs in the asylum system on the back end after they’ve already entered, then there is this incredible opportunity to exploit that system and conduct attacks.
Thirty-five individuals who were involved in actual attacks were known to have applied for asylum or refugee status. There are also – it’s not just asylum. There are similar international protections that also have a very – the processes are very similar. It's refugee status and there are some supplemental ones as well. The average time in country for those 35 was 10.9 months before they were – before they attacked. Also, it’s worth noting that 22 of these were apprehended and arrested while they were inside asylum/refugee camps still. They hadn’t even – they were still fresh enough in the process that they were still living in the – in the centers. OK.
The other issue here – just for I don’t know how much time I’ve got, but the other issue here is that asylum systems don’t detect fraud. You can come in and just say my name is Mickey Mouse in Europe or here and, you know, unless they catch you with biometrics, then you are pretty much in with your fake ID and whoever you said you were, unless there were some biometrics. In the United States we’ve gotten better at tagging people on their biometrics. But in the European context, when you had millions of people they were just waving people through the turnstile so none of that stuff was happening. None of these systems in Europe can account for a single apprehension or arrest or foiling of a plot – not a single one. In the United States it’s a very similar circumstance. We have – it’s not quite as bad, but when you have a mass migration like the one that we’re suffering through right now all of those systems are off the rails. Nothing is normal. The axis has shifted completely in times like these.
So, with that, I can yield the dais here and take questions afterwards. (Applause.)
SZABOLCS JANIK: Ladies and gentlemen, welcome, everybody. I’m Szabolcs Janik, operations director of the MRI, and I will talk about today the situation at the Belarus-EU border. And these events started last summer, if you go back in time.
Some words about the background situation. There was a presidential election had in Belarus in the summer of 2020, which was won, of course, by Mr. Lukashenko, which was a clear case of election fraud. Protests followed in the country, all over the country, which was followed by violent oppression by the regime. There were estimates more than 35,000 people were arrested at that time and many people left the country, actually. And if we proceed in time, we can go to May of last year when the regime forced on the ground the regular flight with an opposition activist journalist onboard, who was later arrested by the Lukashenko regime.
And in the meantime, the EU responded with the well-known sanction policy in five rounds to date. These include travel bans, asset freezes for leading state officials of the Belarus regime, businessmen, companies, et cetera. You can see the numbers; altogether, nearly 200 individuals and nearly 20 legal entities were sanctioned. Furthermore, the planes from Belarus were banned from EU airspace and airports. And in addition, there were also some export bans imposed; freezing of loan disbursements to Belarus, for instance, by the European Investment Bank, or projects ongoing were suspended. And the result was a total loss of Lukashenko’s remaining legitimacy in the West as well as a political and economic isolation of the regime, which were very embarrassing for Lukashenko personally.
Now, what was Lukashenko’s response to all this? Well, an artificially generated migration crisis along his border with EU countries in order to exert pressures on the EU and the Western world. In practice, this meant an import of more than 10,000 migrants, predominantly from the Middle East – Iraq – but also North and sub-Saharan Africa and some South Asian countries. And we can – we can describe this whole response and say cynical revenge with strategic consciousness on the – on the part of Lukashenko. And in order to demonstrate this, I brought you a quote from Lukashenko: “We will not old anyone back. We are not their final destination, after all. They are headed to the enlightened, warm, cozy Europe.” Which I think is a very, very cynical sentence from the president.
How did this look like in practice with this Lukashenko model, let’s say? First, migrants were recruited and informed in the key sending regions, including Iraqi Kurdistan for instance. Then, they changed the legislation in Belarus in order to provide the visa for these people more easily than before.
(As an aside.) I keep pushing. Sorry.
And then, when these people obtained visa, they could legally travel to the country, to Belarus, with commercial flights, just every one of us. They were later accommodated in the capital, Minsk, and they were transported to an EU border section – in the first time to Lithuanian border, Latvian border, and later to the Polish border. And these people were provided continuous support in order to be able to cross the EU border illegally. These were – these were carried out by the soldiers, the authorities who accompanied them along their way to the border.
And we have to add that this meant pretty high profits for all the players involved, like state-owned companies, regime-affiliated businesses like travel agencies, et cetera. And this amount could reach up to $10,000 or even more per migrant, which is a huge amount of money.
I’ve already touched upon the response by the EU, but what did these member states respond? For instance, in Lithuania, the first country to be heavily affected by the events, introduced a state of emergency in the – in the border region of the country. They started to build a reception center for a thousand people. There was also an increasing Frontex staff active in the country, in the border region. And most importantly, they decided to erect a fence of 500 kilometers, which mainly covers the whole border section with Belarus. And as for the statistics part, we could see more than 5,000 apprehensions in total, which is a very high number for this small Baltic country compared to previous year’s data.
Poland was another country highly affected by the Belarus crisis. A state of emergency was also introduced here and more than 5,000 soldiers were deployed at the border in order to protect the Belarus-Poland border. And of course, the erection of a border fence was also decided here, which is, as you can see, shorter than the Lithuanian one but still it’s very long, nearly 200 kilometers long fence. And Poland followed another tactics and they kind of legalized pushbacks. They changed legislation in order to keep migrants out and preventing them from crossing their border illegally, which of course we heard harsh criticism on the side of human rights NGOs. And what made their situation even worse was the continuous provocation on the side of the Belarus authorities and soldiers. They used laser pointers, they threw rocks at the – at the Polish border guards, or even assisted migrants to break through the fence and get onto the – get onto the EU side of the border, which is just, I think, crazy and a clear attack on the sovereignty of Poland in this case.
(As an aside.) Technics is not on my side today. (Laughter.)
Here you can see some pictures. On the left, you can see the construction works of the fence in Lithuania as far as I can remember. And on the right, there is something interesting. We found this text on social media. You can see how the Polish authorities informed those approaching the Polish border. The migrants received an automated text message on their phones with this text: “The Polish border is sealed. Belarus authorities told you lies. Go back to Minsk. Don’t take any pills from Belarusian soldiers.” Because it was suspected that they drugged these people so they can be more easily transported to the border and kind of thrown onto the EU side. So I think this is crazy and insane. But the Polish authorities still tried their best in order to keep these people out.
And if you look at the academic part of the story, we can refer to, for instance, Kelly Greenhill, who discussed the weaponization of migrants to pursue strategic goals by international powers and countries. And Viktor also referred to these examples, which I wrote in my slide: Morocco two times, Turkey in recent years. And you can see the most recent example of instrumentalizing migrants, which was Morocco last year unleashing 8,000 migrants on Spain in retaliation for admitting Brahim Ghali, leader of Polisario Front – Morocco’s rival in Western Sahara – for medical treatment in Madrid. So it was kind of a revenge step from the Moroccan government.
And in this regard, we can call Lukashenko’s action the most systematic and outward example of weaponizing migrants for strategic objectives. And who knows whether this story in Belarus and the eastern border of Europe is over. We will see. Thank you very much. (Applause.)
MR. KRIKORIAN: Think about your questions now because I’m going to take the prerogative of paying for all of this by asking the first question. And actually I had a couple of questions, but I think I’m going to ask Szabolcs. The first one is: Why did Belarus stop? And why would any of these countries that are using this – you know, the weapons of mass migration stop doing it? In other words, what’s the – what is the receiving country’s response that can get it to stop happening?
MR. JANIK: I think Lukashenko had to admit that this attempt was not successful in the end – at the end of the day because Poland, Lithuania, Latvia resisted pretty well. These people couldn’t enter into the territory of the EU. Most of them couldn’t enter. So, therefore, it wasn’t a successful attempt and maybe Lukashenko withdrew his forces to rearrange itself, and maybe – himself – and maybe to prepare for something else in order to have the sanctions canceled and gain legitimacy or at least recognition by the EU, which is – which is not realistic as far as I can see because the EU and the member states stepped up to – stepped up in unity.
MR. KRIKORIAN: Right.
MR. JANIK: So I think – I think that the strategy was working. I’ll stop there.
MR. KRIKORIAN: And you had mentioned that there were some groups objecting to the pushback that Poland was doing, but the objections weren’t all that strong in some sense, were they? In other words, the EU understood what threat this was, and so they were, in a sense, allowing Poland to do things that technically they shouldn’t have been allowed to do. Is that correct?
MR. JANIK: Yeah. Personally, I was surprised seeing Brussels’ reaction, which was very supportive in communication and even funds were promised for these countries to secure their borders, which is, I think, a very sharp turn compared to the situation of 2015 with Hungary and other countries involved. So yes. And the NGOs are another part of this.
MR. KRIKORIAN: So is – this is – were the Hungarians a little miffed that they did in 2015 what they had to do and got criticized for it, whereas Poland got away with it and nobody criticized them?
MR. JANIK: Yeah, I think the environment in this milieu has changed a lot.
MR. KRIKORIAN: Right.
MR. JANIK: And this can – this can be both satisfaction for the Hungarian government and also a disappointment. But still, this is what happened.
MR. KRIKORIAN: OK. Any questions? Because I – oh, yeah, please. Viktor, yes.
MR. MARSAI: Sorry, just a very small addition that currently there is a sentence in Hungary that there are good fences in Europe and –
MR. KRIKORIAN: The Hungarian fence is the bad fence? Yeah, right. (Laughter.)
MR. MARSAI: That’s what the – the Hungarian fence is still the best fence. Like, the Polish and Lithuanian is a good fence.
MR. KRIKORIAN: Interesting, interesting. I think we have the same thing here: There are good fences around the Capitol and then there are bad fences at the border. (Laughter.)
Any questions? Yes. Is there a mic? Or, OK, yeah. Speak up.
Q: Yeah. Just very briefly, what – you know, what basic changes to asylum law need to be made to overcome these problems? Or, you know, pulling out of the asylum treaty. What would the EU –
MR. KRIKORIAN: Well, that’s kind of my panel afterwards, but, yeah, go ahead. (Laughter.)
Q: It would be nice to hear what they have to –
MR. KRIKORIAN: Yeah, sure, sure. Any thoughts on that? Viktor or Szabolcs?
MR. JANIK: Would you like to start?
MR. MARSAI: Yes. Ladies and gentlemen, I think the weakest point of the European asylum system is the repatriation because – and also, again, let’s speak about numbers. We see this 200,000 illegal border crossing, but it’s very important that there are annually an additional 400,000 people who arrive legally to Europe and then apply for asylum or overstaying, et cetera, et cetera. And the real challenge is that forced repatriation doesn’t work in Europe. The efficiency’s now around 20, 24, 25 percent. So –
MR. KRIKORIAN: Of what? Twenty-five percent of what?
MR. MARSAI: Oh, if there is a declaration for this – about 35, 40 percent of people who make asylum application get some protection, some status of protection; 60, 65 percent are rejected, and only 24, 25 percent of the rejected can be repatriated. So it means that – I regularly say that this is the best lottery in the world because if you have managed to get in Europe it’s almost impossible to be repatriated. It’s not similar like – I think in the United States it’s much more effective.
Q: No, it’s not. (Laughter.)
MR. MARSAI: But – or I don’t know. It’s not my expertise. But in Europe, it’s a complete failure. It has different reason – legal reason, financial reason, political reasons – but it’s a nightmare. I have many discussion with the police, immigration officers, and actually currently is the case if you manage to get in Europe it’s almost impossible to be repatriated. So this is the reason why border protection is the – is the key currently in this whole story to stop the number and reduce the number of arrival, because in the last 20 years Europe and the member states haven’t find any solution – found any solution for this repatriation issue.
Just one short example, OK? In Germany, I visited the German Federal Ministry of Immigration some years ago and get a – participated in consultation. And they complained that, OK, there is the decision that the police will go out and collect the people who will be forcefully repatriated. Most of them lives in old block of flats. And, I don’t know, 200 police officers go out with the – with the papers, and then, you know, the alarm chain started that the police is coming; people just moving from one flat to another. Because the police officer, you know, have the paper that I should go to, I don’t know, flat 45, knocking the door – nobody, because the guy go to 47. But you don’t have authorization to go inside 47 because civil rights, you know? You know, and they managed to collect instead of, I don’t know, 350 people, only 100.
Going to the airport, there is a rented cargo – a rented plane for 350 people, but there are only 100 people there. Then a quick calculation that the cost of the repatriation, instead of, I don’t know, 3,000 euro per capita raised to 10,000 euro. And then, uh-oh, no, no, no, then we shouldn’t do this because in our yearly report – annual report is that, oh, the cost of repatriation per capita is not 3,000 but 10,000. Oh, what can be the solution? Oh, cancel the flight, send away the people. And you know, 200 police officer participated with manpower in the operation without do anything, and how many people were repatriated? Zero.
MR. KRIKORIAN: And isn’t it an additional problem that some of the receiving countries you can’t even repatriate people to? I mean, who would you – there are some places the state has failed. Who takes the people? I mean, you can’t just sort of push them out the back, right, of an airplane. Or how does that work?
MR. MARSAI: Yes, but there is some hopeful shift. For example, in Europe some countries started, you know, to consider a safe place in other country because it’s hopeless. Afghanistan, Somalia, if you – no. But regions within the country, because if you have a look at Somalia many people are living Somaliland, another part of the country without al-Shabaab, without civil war, et cetera. But –
MR. KRIKORIAN: Which has its own government, just to be clear, yeah. It’s an unrecognized government.
MR. MARSAI: (The impact of ?) unrecognized government, which is – it’s absolutely stable part of the country. But in the asylum system, they are Somalis, the same people who is coming from south-central Somalia in the – from a civil war. So, for example, Finland did, no, no, no, do you come which part of the country? OK, Somalian. OK, repatriation flight. But it’s a long, long process.
MR. KRIKORIAN: Any other questions? Because I got plenty of mine. Yes.
Q: How effective have the fences that Lithuania and Poland erected been – (off mic) – in slowing or stopping the migration?
MR. JANIK: It’s seemingly working, but these constructions of the fences are still ongoing. So they are expecting to be finished this year, actually, so we will see their efficiency. And this will be a double-line fence system, as you can see in the picture, with the NATO wires at the top, et cetera. But for the time being, these countries showed good efficiency in protecting their borders. That’s the experience so far.
MR. KRIKORIAN: Yes?
Q: Right. In the case of Poland, Lithuania, and Hungary, in looking at it from how the migrants look at the situation, do the migrants see these countries as really passthrough countries on their way to other, Western European countries?
MR. KRIKORIAN: In other words, the Iraqi Kurds didn’t intend to settle in Poland or Lithuania. Those were transit countries?
MR. JANIK: Yeah, of course.
MR. KRIKORIAN: Yeah.
MR. JANIK: They continued their way to the Germany-Poland border, actually, and there was a rise in the numbers that the – that the German authorities recorded last year. So many people could make it to the – to the Polish-German border, thousands and thousands.
MR. KRIKORIAN: Yes, Viktor.
MR. MARSAI: Yeah, sorry, but also in addition, because we have to be very cautious because in Hungary different NGOs and human rights is always arguing why we are so tough with irregular migration, because Hungary’s just a transit country so who cares who’s coming, you know? In 2015, you know, 400,000 – you know, Hungary is now currently 9.8 million people. In 2015, 400,000 people crossed the country – 400,000 – and yet it was a transit, but 170-plus thousand made asylum application there.
MR. KRIKORIAN: In Hungary?
MR. MARSAI: In Hungary. And I think almost 50,000 waited the decision, so let’s say 10 percent. So if we – at the previous year, it was 1,000 asylum application or something. So we have to be very cautious because some part of the people will remain and will try. And you know, if there is a huge amount of people, the percentage is perhaps the same but actually the number are increasing rapidly.
MR. JANIK: And not to talk about the reallocation efforts of Brussels, which is not successful or it has not been successful to date, but it’s in – it’s in their mind. It’s in their plans to introduce some kind of reallocation, at least –
MR. KRIKORIAN: To spread – in other words, to spread them around to other EU countries.
MR. JANIK: Yes, yes, in a mandatory scheme. That was not successful, but still voluntarily it could – it could –
MR. KRIKORIAN: So, in other words, so what you mean is that even if every one of them transited through, if that reallocation agreement went through a bunch of them would be sent back to live there. Yeah, interesting. Right.
MR. JANIK: You could receive under the name of solidarity.
MR. KRIKORIAN: Right. Yes?
Q: Well, then, what we’re – what we’re saying, then, is in addition to repatriation the Dublin regulation requiring asylum consideration in the first EU country of entry also doesn’t work.
MR. MARSAI: Yeah. Yeah, that’s true. And the system was suspended, but you know, nobody knows how long, when it will change. There’s now this new pact on migration commission. There is a lot of debate. But legally, it anytime can –
Q: Yeah, for repatriation –
MR. KRIKORIAN: Yeah, no, you go ahead, and then – yeah.
Q: For repatriation, how would – I mean, just it’s just an idea, because they are not coming from the country of war, most of them who go to Europe, right? The come from the country of asylum. So the idea could be to send them where they came from and perhaps where the U.N. registered them as refugees – from Turkey, from Georgia – (off mic).
MR. MARSAI: Yeah, but then –
Q: I mean, I know it’s impossible, but again, they just – they did not come from the country of war. They came from a country of asylum, so it’s safe countries.
MR. MARSAI: Yeah, but, ladies and gentlemen, we know the term “asylum shopping.” This is what’s ongoing. This is why there was no question for a minute that Hungary open its border for the Ukrainian refugees, because we are the next safe country. It was – you know, there’s a constant debate that Hungary is various stuff and fascist and I don’t know. No, from the – from the beginning Hungary opened the border –
MR. KRIKORIAN: Because Hungary has a border with Ukraine.
MR. MARSAI: A border with Ukraine. I haven’t checked the number this morning, but almost 170,000 people – (inaudible) – arrived. And it’s complete – everything goes well. Open. The whole Hungarian society was mobilized, sending aid, et cetera, et cetera. So but it’s –
MR. KRIKORIAN: In fact, the Migration Research Institute sent them aid, right? Yes.
MR. MARSAI: Yeah, yeah, we also – yeah. Thank you.
Q: And whether you’re talking about Ukraine or – (off mic) – talking about the other –
MR. MARSAI: Yeah, yeah, but –
Q: From the Middle East to Europe, where you can’t send them to Syria but perhaps they can send them back to where they came from, from Turkey or Lebanon. That is a possibility and maybe that’s interfering with the strategy here with the United Nations.
MR. JANIK: But those countries will not take them back. Why should they? They are transit countries. Why should they? Sometimes they don’t even take back their own citizens. (Laughter.)
MR. KRIKORIAN: Yes, in the back?
Q: OK. So for these asylum seekers, what is the messaging that they’re hearing? So from the countries that they’re fleeing, I imagine it’s mostly chaotic. Is there a message from the government or other agencies in another country that’s directing them to certain countries, or is it others? And then sort of these asylum-seeking packs themselves, what sort of communications are they receiving? Because, obviously, you have the example of Poland, but I imagine there’s also some countries or networks that are also saying, no, no, you should go to this country because you’ll receive all of these benefits whereas that might not actually be the case. So I imagine there’s some deception as well. They are probably, like, the least connected out of everyone, just kind of living from place to place. So what does that actually look like on their side of things and what they’re hearing?
MR. MARSAI: Yeah, actually, our colleagues – we have two Arabist colleagues, a Middle East expert and now they’re launching a project to join different Telegram and – Telegram and, I think, WhatsApp, Facebook, and other groups to understand how the communication is ongoing. And actually, it’s completely professional. And, yeah, there is the discussion where is the – what is the benefits for asylum seekers, how – the social system, how many – how much money do you get, which are – how you can avoid the border police, et cetera, et cetera. And what is very evident is this personal communication between the people, their families, or people from the same village who already reached some European countries.
MR. KRIKORIAN: A number of years ago the Mexican government actually put together a comic book for migrants to show them how to safely get across the border, how to avoid being arrested by American immigration police. It was quite controversial.
We’re going to wrap up this half and immediately start the next half of the panel. Thanks. Give everybody a round of applause here. (Applause.) And if you could come on up.
(End Panel 1, begin panel 2.)
MR. KRIKORIAN: Yeah, yeah. Well, I never say anything I don’t want to see on the front page of The New York Times anyway. I still haven’t gotten to The New York Times, but – are we on? Yes. OK, well, that’s fine. (Laughter.) I don’t say anything on a mic that I don’t want to be on our website, either. And this will all be – the whole video will be posted on our site at CIS.org.
The second half is responses. We got to some degree into that a little bit in the Q&A, but this will be specifically what have been the responses to these challenges by a part – as asylum.
And we have Kristof Veres, who’s the Andrassy National Security Fellow at the Center for Immigration Studies, is a visiting fellow. He’s from the Migration Research Institute, as well, where he was – actually got a promotion while he was absent and is now a senior researcher there. He’ll be talking about what were the responses to this instrumentalization of migration on the part of the EU.
And then the second speaker will be talking about the Biden administration’s responses to the asylum challenge, which are actually very different. In a sense, it’s to make it worse. He’ll tell us something about that, Andrew Arthur. Art is his – is what we call him. I always like to say his mother’s the only one who calls him Andrew, or at least that’s what he’s told me. He’s a former immigration judge, former senior Capitol Hill staff member, wrote actually much of the current immigration law, so is in a unique position to talk about this.
And then I’ll finish up by giving some ideas about what I think we need to do kind of more broadly in moving past the World War – post-World War II system of asylum and refugee resettlement.
So you can stay there or come here, whatever works for you, Kristof.
KRISTOF GYORGY VERES: So before talking about the EU responses to the instrumentalization of migration, first I want to talk about our beautiful fence in Hungary on the southern border. In 2015, when the Syrian migration crisis reached the southern border of Hungary, Hungary decided to erect a fence. First, it was just a rapid-deployed concertina wire by the – by the military. And afterwards, it almost took like a year to build the fence that we have now and the fence that you might have seen on Dr. Carson, which is a – which is a double fence reinforced with sensors and cameras.
Hungary received international condemnation for constructing a physical barrier on its southern border and the EU refused to provide funding for it so far. The cost of the wall was 1 billion U.S. dollars. That doesn’t – might not sound much to you, but actually that was the amount that Hungary spent on its defense budget in 2015. So it’s like another defense budget. And then we are not counting the efforts by the authorities – the police and the Hungarian Defense Force – to construct this fence. They were working 24/7. And then the maintenance costs and also the fact that the fence has to be guarded, which is done by the police and by the Hungarian Defense Force.
Also, Hungary passed some – set up some legal barriers which transformed, in a way, the rolling pastures of Serbia into an insurmountable cliff. The most important piece of the legislation package was the idea of safe third countries. The previous panel touched upon asylum shopping. So the safe third country introduced by the Hungarian government postulated that if you are fleeing war then you have to apply for asylum in the first safe country that you are not subject to persecution. Anyway, these measures received, again, condemnation. And in November 2021, the European Court of Justice found that Hungary infringed upon EU law by passing this legislation because, they said, that Hungary restricted access to asylum.
And now I’m going to move on to the EU response, first to the 2015 Syrian migration crisis. We touched upon in the previous panel the Dublin regulation. The Dublin regulation postulates that the first country where asylum seekers enter the EU they either have to provide permanent haven to them or turn them back, which shifts the cost of asylum entirely to frontline countries. Also – also the previous panel touched upon it – the biggest problem is the Schengen Area. How do you – how do you enforce the Dublin regulation in the Schengen Area?
I think Szabolcs said that most of the – most of the asylum seekers who filed asylum applications in Hungary later moved on to better honeypot countries like, for example, Germany or the Netherlands. So frontline countries at some point in 2015 decided that the best way to do is to just wave refugees through. That’s what Greece was doing because the Greek government figured that if they don’t register asylum seekers then they can’t be turned back to their country. And anyway, those asylum seekers don’t want to stay in Greece.
And now the EU response. The EU response was precipitated by Chancellor Angela Merkel’s declaration, the famous “wie schaffen das” speech in late August 2015, when (s)he said on behalf of the German government that they are going to suspend the application of the Dublin regulation and they are going to allow all asylum seekers who reach Germany to apply for asylum there. Then, when the asylum applications skyrocketed in Hungary – sorry, in Germany, then the German government turned to the EU to help them, and the European Commission came up with this splendid reallocation scheme where they wanted to reallocate 160,000 refugees from Greece and from Italy to other EU countries. The objection of five governments, including Hungary, was overruled in the European Council, but after the defections started quickly. Basically, a large number of EU states just sabotaged the implementation of this plan. One year after the passage of the Commission proposal, only 5 percent of asylum seekers were reallocated.
After this, the EU turned to another measure, which was to bribe gatekeeper countries – the most important being Turkey, where the EU signed in 2016 an agreement with the Turkish government where the EU would provide funding not to the Turkish government but refugees and groups that take care of refugees in Turkey, and in exchange Turkey would prevent those asylum seekers to continue their journey towards Europe. The price tag on this project between 2016 and 2024 is 10 billion U.S. dollars with no end in sight. Anyway, Szabolcs touched upon the fact that Turkey tried to blackmail the EU in February 2020, where they said – they basically said, OK, if they don’t give us more money then we are going to just let them continue. And it was the harsh enforcement-first approach of the Greek authorities that thwarted this push in 2020, and then COVID came around and all the borders got shut anyway.
If we assess the EU response to the 2015 crisis, we can see that the EU was permanently weakened. Its mechanisms and rules were repeatedly ignored by member states. The authority of the European Commission was undermined and the Schengen Area was de facto dismantled when the member states reintroduced border controls between each other. And also, Europe’s border controls were outsourced on humiliating terms to non-EU states.
Now moving on to the 2021 Belarus-Polish-Lithuanian border crisis, Szabolcs explained what Poland and Lithuania was doing so now I’m going to just talk about the EU response. A huge amount of solidarity flowed to Poland from Brussels, but what was even more surprising is that the European Commission in December 2021 came out with a new proposal that would chip away at the rights of asylum seekers if a member state is faced with an instrumentalization of migration. These frontier states, according to this new proposal, would be allowed to restrict access to asylum only at designated locations, meaning border crossings. And also, they would be allowed to detain asylum seekers for up to 16 weeks while the substance and admissibility of their claim is being decided on the border. In EU law now, it’s only four weeks. This substance and admissibility assessment is like the credible fear assessment in the – in the U.S. But you are still not supposed to detain asylum seekers while their real claim is decided by the courts and you’re still not supposed to just push them back. So my point is, is that what the Polish and Lithuanian governments were doing still went much, much further than what now the EU proposing – the EU proposed in December, but it’s most certainly a step in the right direction.
And now, finally, Ukraine. Because now, with Russians’ barbaric invasion, the EU finally managed to have a unified response to an unparalleled refugee situation. It’s important to note that Ukrainians can enter the EU without visa and they can stay for 90 days, but the EU also managed to activate its so-called temporary protection directive, which has nothing to do with the American TPS system. Now everyone coming from Ukraine – that includes legal residents and Ukrainian nationals as well – have a temporary protected status in all European countries for up to three years without having to apply for the complex and ponderous asylum procedure. This directive was passed with a unanimous vote in the European Council. Those countries that have – that has been very harsh on irregular migration like Hungary and Poland also supported the measure.
But the problem with the temporary protection directive is, again, Schengen and voluntary redistribution, because the temporary protective – temporary protection directive postulates that based on mutual solidarity the 27 member states of the European Union are going to distribute Ukrainians. Now there is no political row about it because everyone agreed at the European level that this is what we need to do in this refugee crisis, but the problem is how do you enforce this in Schengen. Again, a Ukrainian gets redistributed to Bulgaria or Romania and then he can just say, that’s not fair, I want to go to Germany. There is absolutely no way to stop them going to Germany and get work there illegally.
We’ll see what’s going to happen, but I personally think that it’s a great feat on the European Union’s part that we managed to have a unified response speaking with one voice in this unparalleled refugee crisis which is unfolding on the border of the EU. Thank you. (Applause.)
ANDREW ARTHUR: Thank you. You know, one of the terms that we’ve heard used a lot today is the word “asylum seeker.” Kris just used it a number of times. Under international law, in order to be eligible for asylum you need to either have faced actual persecution in the past or have a well-founded fear of future persecution on account of one of five grounds: race, religion, nationality, membership in a particular social group, or political opinion. General conditions of disorder don’t count. States of war don’t count. In order to be granted asylum, you actually have to show that you have been persecuted, and that’s a very extreme concept under U.S. law in order to be eligible.
And yet, in FY 2021 we had 1.659 million individuals enter the United States illegally at the southwest border and most of them were deemed asylum seekers. The fact is, probably most of them aren’t really seeking asylum and most of them probably don’t have asylum claims.
Let me explain to you how that works under U.S. law. Aliens who enter the United States illegally or without proper documents are supposed to be subject to what’s called expedited removal. They can be quickly removed from the United States without appearing before an immigration judge, without getting an order of removal. We just send them back home. There is an exception to the expedited removal process, however, where a migrant says either they want asylum or states the fact that they have a fear of being returned home. If that happens, under U.S. law they then get interviewed by an asylum officer at U.S. Citizenship and Immigration Services to determine whether they have a credible fear, another term that Kris used.
Credible fear is a screening standard to determine whether somebody may be eligible for asylum. The asylum standard isn’t actually that high. As low as a 10 percent chance of being persecuted back home is enough to get you asylum. This is something that is below that 10 percent level.
Between FY 2008 and FY 2019, about 83 percent of all aliens who claimed credible fear were found to actually have credible fear. That means only about 17 percent were found not to have credible fear. At the end of the day, however, only about 17 percent of those individuals were actually granted asylum. Let me explain to you how that process works.
If an asylum officer determines that somebody does have a credible fear, they’re then placed into removal proceedings before an immigration judge, a person who was likely – and I heard a number of asylum cases from credible fear. At that hearing there is a government attorney who can offer contrary evidence, who can challenge and cross-examine the alien. Judge makes a decision. The alien can appeal an adverse decision. The government attorney can appeal an asylum grant for that asylee.
Under U.S. law, every person that enters the United States illegally is supposed to be detained – detained from the moment that they are apprehended until they’re removed or granted asylum – again, throughout the entire expedited removal process, throughout the entire credible fear process. In 2010, however, the Biden – or, the Obama administration – the Obama-Biden administration decided that they were going to unilaterally and administratively change that rule. They instituted a rule that said that if you had passed credible fear that you would be allowed into the United States on a very limited authority called parole. Nobody challenged this at the time because nobody really thought that it was a big deal. Well, it turned out to be a big deal.
In 2009, before the – before the Obama administration changed that rule, 5,325 individuals claimed credible fear. By FY 2019, that had increased 19-fold to 105,439. Aliens knew that if they claimed credible fear they were probably going to have a pretty good shot that they would receive a positive credible fear determination and that they would be released. So it created a pull factor that brought individuals to the United States to claim asylum. Again, most of these folks did not have asylum. Many of those claims were just no good. In fact, in 32.5 percent of all cases in which people claimed that they had a credible fear of removal, the alien never showed up for court.
This is just an example of how this system has been abused, and this is the system that we have in place right now. The Biden administration has actually offered some proposals to change this system that’s going to weaken it even more.
In August 2021 in the Federal Register, the Biden administration published a proposal that would take the authority for adjudicating those asylum cases away from immigration judges as a preliminary matter and give it to asylum officers. Under the law right now, if an asylee is going to apply for asylum they have to file a government form, I-589 – it’s not terribly complicated; it is a little bit long – and it asks what exactly the basis of the fear is. The immigration judge adjudicates that. The Biden administration wants to waive that asylum application rule, and you’re probably wondering why they would do that. Why do you want to just have them not file an application? What they want to do is when you go in to talk to the asylum officer – and by the way, there’s no government attorney at that hearing. It’s just an informal interview. It’s a conversation. In fact, it’s specifically non-adversarial. And asylum officers are taught how to make that non-adversarial. Don’t contest anything that they say; just listen to them, have a conversation. Biden administration wants to take that protection away. Also, there’s no government attorney to appeal that decision if the asylum officer makes a wrong one. If they grant someone asylum erroneously, that person just gets asylum; there’s not going to be an appeal from that.
But why exactly would the Biden administration take away the requirement that those individuals file asylum applications? They’re actually pretty straightforward about that. Under U.S. law, if you don’t file an asylum application within one year, you’re not eligible for asylum. The Biden administration wants to make sure that none of those people are barred under the one-year bar. So as soon as you sit down and talk to the asylum officer, you’ve made your application. The other reason is, under U.S. law, you have to wait anywhere between 180 days and 360 days after you’ve made your asylum application to get employment authorization. The Biden administration is explicit about the fact that they want to make sure that these folks can get their asylum – can get their employment authorization as quickly as possible.
By the way, I said that immigration judges no longer have adjudication of those asylum applications, but that’s only true as a preliminary matter. If the asylum officer denies that alien asylum, they can then appeal that decision to an immigration judge who’s going to get a bunch of notes just like this from asylum officer and try to put together what exactly the asylum claim is. If the immigration judge denies the application, the alien then has the opportunity to apply to the Board of Immigration Appeals; then, if they deny they can take it – they can file a petition for review with the circuit courts. Right now it takes 2.45 years, on average, throughout the United States for an alien to even get a hearing date. Under this proposal, that is just going to be expanded because more people are going to come in expecting that they’re going to have the opportunity to have a quick decision by an asylum officer. Probably many of them will; maybe many of them won’t. It’s just going to encourage more people; you’re going to get more people coming in. There’s only about 580 immigration judges, so that time is going to – their time is going to be taken up hearing nothing but border cases.
That’s not the only idea that the Biden administration has, however. Remember, I said everybody’s supposed to be detained. Under a leaked proposal, the Biden administration wants to set up reception centers at the Southwest border. That’s a place that migrants could go to. They will be given medical care, dental care, psychological care. They’ll have the opportunity to have their kids educated, and they can come and go as they please. Biden administration purportedly is planning on releasing many of those people just plain flat out the door and those that they do track will be given – released on alternatives to detention. There are 180,000 people in the United States currently under alternative detention. By the way, when we talk about asylum seekers in the United States, people who have actually filed asylum applications: Right now there’s 623,000 pending asylum applications before those 580 immigration judges. That’s on top of 400,000 other asylum applications that are pending with the asylum officers in the United States. More than a million people are actually applying for asylum in the United States right now.
Again, reception centers – these individuals won’t be detained. They’re going to be non-carceral, as they say. They’ll be able to come and go as they please. That’s just going to encourage even more people to come illegally. Then there’s a delayed proposal. We know it’s out there; we just don’t know what it is. Remember, I said race, religion, nationality, membership in a particular social group or political opinion – the only five bases for asylum. Membership in a particular social group isn’t defined anywhere. Judge Alito, before he got to the Supreme Court, said a “particular social group” can be any group of two or more people whatsoever. Individuals will say that I’m a member of a particular social group of women who don’t believe in living under a patriarchal structure in Central America. It can be cab drivers who don’t agree with fare rates. It can be individuals who are completely neutral against the cartels. It could be individuals who have spoken against cartels. So, you know, this is a vulnerability, but thanks to U.S. law, we’ve really narrowed this a whole lot. It has to be visible. It has to be recognized in society; you can’t just come to court and make up a group so that you can receive asylum.
We know, however, that the Biden administration is planning on watering down that standard. How do we know that? President Biden on February the 5th issued Executive Order 14010 in which he directed DHS and the Department of Justice, the attorney general, to review the definition of “particular social group.” Again, we have a standard, we have a rule, but the Biden administration wants that to be reviewed, and we know that it’s not going to make that rule tighter because Attorney General Merrick Garland has already, using authority that he’s granted under U.S. law, watered down that rule. Then-Attorney General Sessions under the Trump administration had said in most cases individuals who are claiming fear of harm because of common criminality, because they were mugged or they were threatened or they’re being threatened because they were witnesses to a crime, those individuals aren’t generally eligible for asylum. Attorney General Sessions also said domestic violence is a horrible thing, but it doesn’t really fit any of those five factors for asylum relief. Attorney General Garland has reversed that decision as well.
So when you take together – when you take all of this as a whole, when you take 1.659 million people entering illegally, when you take this proposal to give asylum officers the ability to adjudicate asylum, the erection of reception centers, and then a watering down of the asylum standard, what you’re going to do is you will have a million people show up illegally every year and you’re not going to have an immigration problem, you’re going to have an asylum processing system that will usher 1 million people-plus into the United States every year. So literally, it will take what is currently against the law and make it a process to enter the United States illegally. What should be expedited will become the exception that swallows the rule.
And with that, I yield over. Thank you. (Applause.)
MR. KRIKORIAN: What I wanted to do is look at the idea of asylum as it exists, and the first point I’d want to make is that the instrumentalization, the weaponization of migration – we’ve talked about who is it that has instrumentalized it? Who’s used migration as a weapon? Viktor and Szabolcs talked about various countries and governments using migration. The “Weapons of Mass Migration” is the book Szabolcs had referred to. Todd talked about terrorists and terrorist organization using migration as a tool. But there’s a third group and that is domestic organizations, domestic interests in the receiving countries that are basically post-national, to be charitable, or anti-national, to maybe be more accurate, that use migration as a kind of – and use asylum specifically as a kind of crowbar to pry open the borders of the countries, the borders that they do not accept as legitimate. And so this really highlights the urgency of revisiting the very concept of asylum. Asylum as it exists now creates a right to enter a country that the citizens of that country have no right to reject. This is an inversion of the way immigration policy ought to be working and the way we think it does work, but it doesn’t.
Last year was the 70th anniversary of the United Nations treaty relating to refugees; it’s called the Convention Relating to the Status of Refugees. It was a post-World War II, beginning of the Cold War artifact. It dealt with, it sought to deal with the immediate problem that existed in the wake of the Nazi and Soviet aggressions in Central and Eastern Europe. The original convention, 1951, was confined to Europe; there was a corollary convention called the Protocol – again, it’s a treaty – that expanded those rules to the whole rest of the world. President Truman did not sign the 1951 refugee convention precisely because it was a restriction; it introduced this concept, subservice concept, really, of restricting American sovereignty.
However, the 1967 follow-on, the corollary of it called the Protocol, was signed by President Johnson’s administration in 1968. It was confirmed by the Senate in 1969, and then in 1980 it was formally incorporated into American law. It was, at the time, a sideshow almost. In other words, it was a minor matter; it was – it’s only a little bit of an exaggeration to say that it was a latter version of what the – for those of you who know about diplomatic history, the Kellogg-Briand Pact in the 1920s outlawed war. That really worked out great. But it was mocked even by the people who signed it as an international kiss. Well, in a sense, the refugee protocol, when the United States signed it, was, in fact, kind of seen almost as an international kiss. It only applied to a handful of people.
At that point, the immediate aftermath of World War had, obviously, passed, so it was basically for Russian ballerinas who were defecting. That was kind of what it was. And in the 1970s, in the United States before we formally put the provisions into our law in 1980 – in the 1970s we had an average of 2(,000) or 3,000 asylum applications a year. So that’s more than the occasional Russian ballerina but not much more. It was not considered an issue to really be worried about. Well, as Art pointed out, we’re now talking about hundreds of thousands of people using asylum as a way of getting into the United States. It’s choking our immigration courts. The same thing is happening in Europe. This is because we live in a completely different context. The world has changed. Communications and transportation has become rapid and much simpler and easier. There’s been a complete inversion of the population relationship between the kinds of places that would send people who were asylum seekers now have ballooned in population. The places that people want to go to now make a much smaller share of global population.
Europe is obviously going to be facing this problem in a dramatic way. It’s sitting on top of Africa, which is going to have 4 billion people at the end of this century. And there obviously are regulatory tweaks that can be made. Kristof talked about some of the changes – you know, not only the Dublin Regulation but then things that are tightening up on that. Art talked about the changes we’re making going in the other direction, but there were, in fact, ways – there were methods that we had used in the U.S. to tighten up on immigration. Some were on the asylum issue. Some were passed in the 1996 immigration law which tightened up immigration across the board, but also, in the prior administration, the attorney general established some new precedents for what qualifies for asylum, what doesn’t, so that there are various regulatory ways of tightening the system. The problem is that those can always be changed and will be changed, as we’ve seen from one administration to another, a kind of ping-ponging of policy where the Biden administration has sought to pretty much undo everything the previous administration did, including, as Art laid out, a dramatic expansion and loosening of asylum.
So my contention is that this cannot – there’s no way for the developed world to regain control of its borders without scrapping the entire asylum system as we have it. The refugee convention and protocol are anachronisms. They were – the treaty, the original treaty, the convention, was signed a lifetime ago. The world has utterly changed and we need either an entirely new international legal structure for dealing with asylum or, arguably, dispensing with it altogether and returning it to individual nations deciding on how they’re going to deal with this issue of asylum, if they want to or not. For instance, the refugee convention, Article 31 of the treaty, says that an illegal immigrant has to be considered for asylum, so long as he has come directly from the country where he is experiencing the persecution. Well, that often does not happen; that’s what asylum shopping is about.
At our border, we have people from Haiti who lived in Chile and then crossed through – I’m not even sure; I’d look at a map – 12 different countries to get to the United States. They weren’t being persecuted. No Haitian in Chile was being persecuted in Chile, nor in Peru, nor in Ecuador, nor in Colombia, if I’m getting my map right, nor in Panama, Costa Rica, Nicaragua, maybe Honduras, Guatemala, and Mexico. Well, the refugee convention does not mandate that that person be considered for asylum because he’s not come directly from the country of his persecution, and yet that’s the way our law does it; that’s the way our law deals with it. Nonetheless, it seems to me, in international law, forum shopping has to be prohibited, has to be made illegal, at least in domestic law, arguably in international law.
Likewise, the definition of persecution I think needs to be dramatically narrowed so that past persecution should not count. I mean, if the idea of sending someone back home – obviously, the fear is well, they’re going to be locked up, they’re going to be killed, whatever it is. Well, that’s a real issue; that’s something we should consider. But if it happened in the past and it isn’t likely to happen in the future, the regime has changed, what have you, that should not be a basis – it literally should not be a basis for an asylum grant. As Art suggested, the likelihood of that persecution, the bar is set pretty low. I don’t think 10 percent is written in the law but it’s that – in other words, it’s a very low likelihood. Well, sorry, but if we are going to surrender sovereignty – which is what asylum represents; it is a surrender of sovereignty – the likelihood of persecution must be much higher than simply a sort of off-hand 10 percent likelihood of it.
MR. ARTHUR: The Supreme Court did say that.
MR. KRIKORIAN: OK, they actually said 10 percent.
MR. ARTHUR: Yeah.
MR. KRIKORIAN: OK, well, it’s still not really law but I guess it is now because whatever the judges say somehow turns into law. But the basic point is – to finish up and we’ll take questions – is that asylum policy needs to be made in the national interest; it cannot be a rights issue. Moving from one sovereign state to another needs to be an issue of privilege where the receiving state has complete authority to say no. Politically, they can set up whatever arrangement they want, but it has to be a matter up to the people who live in that country, and this is especially true in self-government, because what asylum represents is a kind of subversion of self-government because the people of the United States or of any European democracy, under current international arrangements do not have the right to say no to certain people, and that cannot be allowed to persist. We were able to live with that for many years because it simply wasn’t a challenge. It was never really – we were never faced with the consequences of it. Now we are and we need to return admission to our respective countries as purely a privilege that we grant, not as a right that people exercise against us.
So I’ll finish there and take questions. Anybody?
We have to have provoked somebody. Yes.
Q: So my question is for Kristof but I’ll actually let Art answer it. (Laughter.)
MR. ARTHUR: My reputation precedes me. (Laughter.)
Q: I’m wondering if countries – and specifically Greece and Italy come to mind but also France and Spain – have ever considered pushing back against the refugee rules to be similar to what the United States does when it picks up migrants at sea. So we have in the United States asylum when you come to the U.S. border, but we have an entirely different structure when migrants are caught at sea.
MR. VERES: Well, Italy and France – first of all, France, now they have an upcoming presidential election and the chief – the main topic is immigration and immigration from the Maghreb countries. All of the main candidates have a major platform talking about immigration and, as a part of that, asylum and refugees, and there has been, mostly from right wing, more parties on the right have a criticism of the EU system that we still have in force.
In Italy, during the 2014 and ’15 migration crisis, people crossing from – crossing on ragtag boats from – mostly from Libya to the small island, Italian island of Lampedusa, there has been a shifting back and forth between let’s call it the heartless head and the headless heart. The Italians, when these boats started capsizing in the Mediterranean and people – migrants started drowning, then they launched the so-called Mare Nostrum program where the Italian navy would sail all the way to the edge of Libyan territorial waters and pick up those asylum seekers and ferry them back to Italy.
After that, the smugglers realized, well, we don’t actually have to take them all the way to Lampedusa. We just have to tow them out into international waters.
So after that, when the number of people crossing the Mediterranean skyrocketed again in 2015 the Italian government suspended the program – that was the heartless head taking over for a second – and after that more people died and it was a huge outcry.
So, yes, it’s a very, very hot issue in Europe right now and there is multiple pushes towards changing the system that we have right now. But so far, I don’t see, like, a unified opposition from member states or from a number of member states speaking at one voice to change the system. That’s because the interests of the members then don’t always align.
Like, for example, again, the 2015 migration crisis, Hungary and Italy, you would think that they would agree of measures taken at the European level. But that was not the case because it was about relocating asylum seekers from Italy. So Italy supported it but Hungary opposed it.
So there is always a misalignment of interests at the European level and that causes a kind of gridlock that prevents any kind of a huge, colossal reform to be passed at the European level. The Ukrainian refugee crisis and the Belarusian border crisis might change that.
MR. KRIKORIAN: Yes?
Q: What is the – what are the main differences of the former crisis in 2015 with the last migration to this crisis between the European Union states that changed their mind with the temporary protection?
MR. VERES: So why – so why Hungary is letting the Ukrainians in now when they didn’t let the Syrians in. It’s not because the Ukrainians are Christian and the Syrians are not, and Hungary is a Christian country. To paraphrase the Hungarian prime minister, you don’t have to be a nuclear scientist in order to see that the Ukrainians are fleeing from next door. They’re fleeing a war in their country and Hungary is the first safe country they can flee to.
There is – not just Hungary – Poland, Slovakia, Romania, Moldova – but Hungary is one of them. They have nowhere else to go. While as the Syrians, as Mark touched upon it, they left Syria as refugees and then they stayed in Lebanon, Jordan, or Turkey for a while. And then when the European governments, most notably in 2014, the German government cut in half the funding for refugee camps in the Middle East for Syrian refugees, when they saw that they have no prospects of going back to Syria because it was a protracted armed conflict and the funding for the refugee camps plummeted, then they decided to move on and try to exchange the life – an indefinite life in a refugee camp in the Middle East to something better in Europe.
MR. ARTHUR: But, if I could, and I know the question wasn’t directed toward me and –
MR. KRIKORIAN: That’ll never stop you from answering.
MR. ARTHUR: Well, thank you. (Laughter.) Well, he got all the answer the last time. But no, it actually brings up a very important point, one that goes to Mark’s exact statements. And, again, keep in mind, I’m not really where Mark is right now with respect to scrapping the asylum convention. But part of the reason why the asylum convention makes sense is because we live in the real world. There are bad people. Bad things happen to people and sometimes we need to, you know, bring people out of a bad situation.
That is exactly what’s going on in Ukraine right now. Heavy ordnance is raining down on apartment buildings. They can’t really live there, and it’s been traditional throughout history that you will have the movements of people temporarily out of harm to places. There’s a reason why we had refugee camps, you know, during the Afghan war – the Russian-Afghan war, that we had refugee camps in Pakistan, because, of course, people had to be moved out of harm’s way.
That actually made sense. We also know that there are specific individuals in the world who are endangered. I mean, imagine that Kyiv falls tomorrow and, you know, the president needs – President Zelensky, you know, needs to flee somewhere. He can’t stay in Ukraine. His life is going to be in danger. We know that there are specific individuals that we pluck out of harm’s way.
What the ’51 convention – the 1967 protocol – really did was it sort of regularized that system and, you know, handed it over to the administrative state to apply, and when that happened, you know, the basic concepts were still there but it has created the exception that Mark described. It’s become the exception that has swallowed the rule.
So it’s not the person who’s in the most danger in the world who’s applying for asylum to the United States. It’s the person who can make it to San Francisco International Airport. It’s the person who can cross over the border from the Southwest, you know, through the Sonoran Desert or across the Rio Grande. You know, it’s the person that can make it to the borders of Hungary, Poland, or Lithuania, thanks to the tender mercies of the Belarusian government.
So, you know, all of this – in fact, the question, really, sort of – and I know that the question has been thrown back at many people in Europe. But the question itself really underscores all of the flaws of the system today. Again, if there are people who are fleeing temporary periods of war, the United States government can help to support refugees in place. We can, you know, establish refugee camps, schools, provide water. We’re a rich country. We – our GDP is three times what China is and, you know, we do have the ability to do that and the heart of the American people is such that we will do that.
But, and, again, this gets to a bigger issue that we face and that, I think, Europe’s soon going to face. The American people don’t want to be played for suckers. We don’t like what’s going on. We don’t like, you know, people who are taking advantage of structures to get into the United States and take advantage of what – you know, the blessings of our liberty. It’s a good life and I’m grateful that I was born here.
But the American people don’t want that, and I’ve been involved in this area long enough to know that when things go too far the reaction is very swift, and I don’t want that swift reaction because we’re an immigrant-receiving country. We always need to be. But if what President Biden has planned comes to fruition it will be the end of asylum. Everyone is going to think like Mark Krikorian does on this issue, and –
MR. KRIKORIAN: So let me – I, actually – I think the – it’s actually an interesting comparison when you look at the way the Ukrainian refugee crisis is being dealt with as opposed to the way the Syrian – and I put that in quotes because they weren’t even Syrian, most of them – refugee crisis was dealt with is that it actually demonstrates why we don’t need the refugee convention.
In other words, this should be left to the political decision-making of receiving countries. Like so much of our – of this structure of international agreements, only democratic self-governing – and I’ll even say it’s civilized countries – are the ones who comply with it who would be complying with these rules in one way or another probably on their own through their democratic processes. It wouldn’t necessarily be consistent and regularized. But, you know, there’s all kinds of signatories to the refugee convention and protocol that couldn’t care less about the rules in there like –
MR. ARTHUR: Like China.
MR. KRIKORIAN: – like China. I mean, it’s – so my point is the Europe – if the refugee treaties did not exist there would be no difference in the way that the Ukrainian refugee crisis is being dealt with. I mean, the governments of the EU – of the member states of the EU – would be dealing with it according to their political decision-making.
You know, what role does the refugee convention or protocol even play in that? Basically, it exclusively exists. I mean, I think it’s fair to say the refugee convention or protocol exclusively exist as a tool to use against the electorates of liberal democratic countries and it serves no other purposes.
MR. VERES: I just, briefly, wanted to disagree with Art on refugee camps. So I don’t think that camps funded by honeypot countries are the solution because the refugee camps are a temporary solution to a crisis.
But since the 1980s they became, like, a temporary permanent solution. Like, in Africa you have those horrible, horrible refugee camps where you have people are born there, people are raised up there, and they spend their life there and they just get their whole life wasted on living on basic assistance provided to the – provided by richer countries.
How I see it the main problem is, is that the current international regime postulates that the only solution to help refugees is this permanent relocation. In Europe, several countries are pushing towards giving refugees just temporary protective status like this temporary – OK, I know that in the U.S. temporary protections means permanent. (Laughter.) But in Europe it still means temporary for –
MR. KRIKORIAN: Yeah. Yeah. We’ll see. Three years from now let’s see what that means.
MR. VERES: Yeah. But, like, the government of Denmark now they started rescinding resident status to Syrians because –
MR. KRIKORIAN: And Denmark has the population of West Virginia. How about everyplace else in the – we’ll see. I’m not arguing. I’m just saying let’s see what happens. So –
MR. ARTHUR: But and, honestly – and, again, we don’t even have to take questions. We could just trade back and forth amongst ourselves.
MR. KRIKORIAN: But there is a question.
MR. ARTHUR: But, no, I do agree with Kristof in everything that he just said because we don’t want to have permanent refugee camps. Again, the European Union has amazing power, economic power, and the ability to assuage and to end conflicts that allow people to be resettled out of those refugee camps back, you know, to their homes.
Refugee camps also play another critical role. The people that go there are civil society in the countries from which those individuals have come. If you take – if you empty out the refugee camps and you send them to Western countries or other countries, when the conflicts that drove people to those refugee camps are over there’s not going to be a civil society left to rebuild that country.
You know, we say in the United States our children are our future. They’ve, obviously, never met my children. But the – but – or I hope they haven’t – but the – but, you know, it is one of those things. Human capital is the most critical thing that any country has and when you take human capital – you know, the Guatemalan foreign minister a couple years ago talked about taking, you know, the children from Guatemala into the United States. That is the future of Guatemala.
If the problem is corruption, violence, and poverty in a country and then you hollow out the civil society in the country, you’re just going to get more corruption, poverty, and violence. So I do agree with that. But, again, we need to do a better job of solving regional conflicts so that we can get people back home to rebuild civil society.
MR. KRIKORIAN: Let’s take one last question because lunch awaits and I’m hungry and I – go ahead.
Q: Well, I guess my question is maybe the depressing one. So let’s assume you get everything you want: We pull out of the treaty you want. We change some of our asylum laws. But right now in America – and the same, we hear, in Europe, based on the previous panel – they can’t even send people home who aren’t supposed to be there, right? If we’ve had continually 10 (million) to 12 million illegal immigrants residing in the United States and Europe has – the vast majority of failed asylum applicants aren’t even sent home, you could create a new treaty and a new regime but the problem is none of the Western societies seem to have the will to even send people home who’ve had their day in court. And that’s why you get all this craziness, we’ve got to – we’ve got to have a – we’ve got to keep them out at the border. In the United States, we send people to Guantanamo at various times so we can somehow keep them out of the jurisdiction of the U.S. courts. I mean, the problem is underlying in all these societies. They’re just – they just – they can’t seem to muster the political will to actually send people home. So who cares what the regime is? We consider it, we say no, but you get to stay anyway. I mean, why would that –
MR. KRIKORIAN: Yeah. I mean, I would just argue that, yes, that’s, obviously, a part of the problem and it would take political will to make the kind of changes I’m suggesting anyway.
But the fact is the asylum protocol for the United States – the asylum – the refugee treaties create the opportunity for migration to be instrumentalized, often opportunities that would not exist otherwise – in other words, opportunities in U.S. courts or any – I mean, what was the – what was Lukashenko thinking? Well, he was thinking, well, look, the EU rules are such that if I can shove enough Iraqi Kurds across the border once they set foot in Poland then they’re stuck with them because of their rules.
Now, Poland pushed back. They actually did develop the will there to do something about it. But my point is the legal structure creates the preconditions for weaponizing migration that are necessary to change those preconditions if we’re going to be able to control it.
MR. ARTHUR: Yeah. And if you look at it in the border context, I mean, the whole reason that you have a flood of people is because they get released to an indefinite process to apply for asylum. If you were to do what Mark said – as soon as we caught you we’re getting you a plane ticket home and if your home country won’t take you, that’s fine. We just don’t issue any visas in that country until you take your nationals home.
Q: But, look, you’re basically arguing that the legal system in these countries make it very hard to send people home. It seems like you could just go one more step. No, the social attitudes and weaknesses –
MR. KRIKORIAN: Sure.
Q: – of these countries create the legal system that makes it impossible to send these people home.
MR. KRIKORIAN: Yeah, that’s fair. There’s no question. But, you know, that’s why think tanks like the Center for Immigration Studies and the Migration Research Institute exist. So, and on behalf of –
MR. ARTHUR: I think let’s get one question. Monica’s –
MR. KRIKORIAN: Did you have a question, Monica? Yes. Because everybody’s hungry.
Q: (Off mic.) However, I totally agree with you, Mark. But just a question. If the convention even exists, would it be a political tool not to let people in who are in need to certain countries or technically to anywhere because they are too poor, they don’t have the same culture, they don’t have that. So if it could be, like, a political – (off mic) – because that’s –
MR. KRIKORIAN: It would be – no, it would be a political matter. But my point is that especially in a liberal democracy everything should be a political matter as far as accessing that country.
Now, you know, we have basic rights. We have – you know, in the United States we have the Bill of Rights. We have the right to, you know, speak freely, and that could be changed but it would be a very – you know, the people – it could be changed through democratic processes. But, nonetheless, it’s posited as a right.
When President Johnson signed the protocol in 1968, the signing statement used the word “rights” for foreigners, I think, 13 times or something. I counted it up. That’s – that has to end because it is a restriction on the democratic decision-making of the members of that society.
So, yes. But my – people could be turned away and used as bargaining chips but that’s a political matter for the people in that country to deal with internally.
Q: Yeah, but in that case you could have – (off mic) – so that none of the countries would let those people in, because at the moment there’s a – (off mic) – it’s a right, which is – yes, it’s not supposed to be a right; it should be a possibility. But in that case, if the refugee convention wouldn’t exist, let’s say none of the countries are obliged to let those people in. So that’s not good either.
MR. ARTHUR: And, again, you know –
Q: It’s hypothetical, I know –
MR. ARTHUR: But because –
MR. KRIKORIAN: No, I understand. The world is a – the world is an unfair place. I mean –
MR. ARTHUR: But because it’s a political matter, there would then be militation on the part of the citizens of those countries to make things better where those people are coming from. Right now, we can say, well, you know, Guatemala is, you know, bad. We could make it better. If this wasn’t the safety valve we would have more political impetus to actually do good things in the world rather than just say, well, you know, just come on in and –
MR. KRIKORIAN: OK. Well, with that, Marguerite’s already started to eat. So – (laughter) – the – on behalf of Center for Immigration Studies, and I guess I’ll – I can also speak on behalf of the Migration Research Institute, thank you for everybody coming. This will be on our website, the whole – the video of it and I think we have a transcript as well – we will. And I hope you come to our next event. We’re cis.org. I’ll give you a little – well, a little plug, too. We have a weekly podcast which you can subscribe to at all the usual places and you can also sign up for our email list for email alerts.
Thank you very much, and bon appétit.