Between 2014 and 2016, nearly 400,000 Afghan nationals applied for asylum in the European Union (EU), which made Afghanistan the second most important country of origin among asylum seekers in the EU, after Syria. However, the way EU Member States deal with Afghan asylum seekers is subject to much controversy. Despite a worsening security situation in their country of origin, on average more than half of all Afghan asylum seekers are denied asylum in the EU. They are also confronted with severe injustices as their recognition rates vary greatly, depending on where in the EU their claims are registered and examined. Among those who are rejected, many risk ending up in protracted legal and social limbo situations as they are required to leave the EU but relatively seldom returned to Afghanistan.
This blog post uses the example of Afghan asylum seekers in Europe to provide evidence for two grave shortcomings and injustices in the common asylum policy in the EU: (1) the lack of a harmonised decision-making practice in asylum cases; and (2) the problem of EU Member States’ unrealistic expectations regarding the return of rejected asylum applicants to conflict-ridden countries of origin.
Variations in asylum outcomes across the EU
In the current political discussion on necessary reforms of the Common European Asylum System (CEAS), issues such as a fairer sharing of responsibilities among the EU Member States for the intake of asylum seekers, a more uniform asylum decision-making practice and a more credible return policy play a prominent role. The emergency-like situation in 2015, when more than 1.2 million asylum applications were lodged in the Member States, exposed a number of long-standing deficits of the CEAS. In addition to the lack of solidarity among the Member States regarding refugee admission and failures in terms of coherent asylum decisions, the ‘crisis’ also showed that most of the people seeking protection had no possibility to reach the EU through secure, legal pathways. EU Member States furthermore tried to reduce the number of incoming asylum seekers by adopting more restrictive policies in an uncoordinated, unilateral manner.
The CEAS sets out a series of legal acts, which, i.a., regulate the determination of the Member State responsible for examining an asylum application, and provide minimum standards for the reception of asylum seekers, asylum procedures and criteria for the recognition of non-EU nationals as refugees or subsidiary protection beneficiaries. The CEAS is supplemented by further legal acts that go beyond asylum in the narrow sense, such as common rules for the return of persons obliged to leave the country. In 2016, the European Commission launched a process to reform and strengthen the joint legislation, while at the same time promoting closer cooperation with major countries of origin and transit to limit irregular migration.
The problems Afghan asylum seekers face in the EU are particularly illustrative of the shortcomings of the CEAS. In the absence of an EU-wide distribution system, most of the roughly 400,000 Afghan asylum seekers that reached the EU between 2014 and 2016 lodged their claims in Germany (168,000), Hungary (65,000), Sweden (46,000) and Austria (41,000). These numbers may reflect, to some extent, a choice of destination made by the Afghan applicants themselves, but in part, they can also be the result of forced migrants being detected on route to other destinations. On the other end of the scale, some countries (such as Latvia, the Czech Republic, Poland and Portugal) counted less than 100 Afghan asylum seekers during the same period.
Yet not only the number of Afghan applicants varies between the various EU Member States; their chances to actually receive protection differ strongly as well, and their overall prospects to be allowed to stay are fading. In 2015, the Member States granted around 66.9 % of all Afghan asylum seekers protection. This percentage decreased to 56.8 % in 2016, and to 47.4 % during the first half of 2017.
When we look into how individual Member States decide on Afghan asylum cases, we can see that the EU is very far from a harmonised approach. In Germany, the main receiving country, the protection rate for Afghans was 46.3 % in the first six months of 2017. Austria (49.5 %) and Sweden (48.2 %) were close to this rate. By contrast, the recognition rate for Afghans was close to 0 % in Bulgaria, below 10 % in Hungary and below 20 % in Denmark. Much more generous were Italy, France and Luxembourg, with protection rates well above 80 %.
Given the fact that the EU has worked towards an approximation of national asylum decision-making standards for almost two decades, these differences are striking. Already in 1999, the European Council in Tampere agreed on the objective to achieve an “approximation of rules on the recognition and content of the refugee status” and “measures on subsidiary forms of protection”. In 2004, the EU adopted its first binding Directive on asylum recognition, which was further strengthened in 2011. Negotiations are currently ongoing for even further refined EU legislation on the criteria for protection status determinations, this time in the form of a Regulation. In parallel to this legislative process, a gradual standardisation of national asylum decision-making has also been facilitated by EU-organised mechanisms for an exchange of experiences among national asylum practitioners, such as the Centre for Information, Reflection and Exchange on Asylum (CIREA), which was later replaced by the European Union Network for Asylum Practitioners (EURASIL), and eventually taken over by the European Asylum Support Office (EASO).
The lack of harmonisation is thus both well documented and well known to policymakers, but solutions are still tentative. On the one hand, work is being done to strengthen the EASO and transform it into a “European Asylum Agency”. As yet, EASO does not have the power to interfere with national asylum decisions. In March 2016, the Council of the EU decided to improve the common approach through more structured and harmonised production and use of country of origin information in an endeavour to mitigate the European “asylum lottery”.
Returning rejected asylum seekers to Afghanistan – an illusion?
Another problem is the return of those Afghan asylum seekers who are found not to be in need of protection. When an asylum application is ultimately rejected, the persons concerned usually have to leave their host country, and unless they leave voluntarily, they are to be removed by force. In its May 2015 “European Agenda on Migration”, however, the European Commission diagnosed that the European return system “works imperfectly”, and that the “enforcement rate” needed to be increased. An efficient return policy is therefore high on the EU agenda.
The example of Afghan nationals shows how difficult it can be to achieve progress. In 2015 and 2016 together, over 69,000 Afghan nationals received a return decision, but less than 13,000 left the territory of the Member States over these two years, according to Eurostat. The available European-level statistics on types of return (voluntary departures/forced return) are fragmented, as not all Member States supply such data to Eurostat. However, the available evidence suggests that there is a wide gap between the rejection of asylum applications by Afghan refugees and their subsequent repatriation.
In the political discussion about the difficulty of carrying out returns, reference is often made to a lack of willingness among the asylum seekers themselves to comply with rejection decisions. Problems can also relate to the respective persons holding no travel documents or deliberately not submitting these to enforcement agencies, refusing to disclose their identities, or evading deportation by absconding. Countries of origin sometimes refuse to readmit their own nationals, or do not issue passports.
While such explanations may be true in many cases, the example of Afghanistan suggests that there are more fundamental reasons for non-return as well. Although the EU and several of its Member States have concluded readmission agreements with Afghanistan, which should eliminate several of the practical obstacles mentioned, the deteriorating security situation in Afghanistan is certainly a root cause for many problems. For example, several German federal states have halted deportations to Afghanistan due to security concerns, and in May 2017, deportations were stopped following a terror attack near the German embassy in Kabul. In early February 2018, Sweden paused forced returns after another attack, which made it impossible for embassy staff to reach the airport in Kabul to meet returnees. A recent survey by the European Migration Network showed that most EU Member States in practice very seldom carry out forced removals to Afghanistan, or none at all, or that they only deport single adult men – exempting, for example, unaccompanied minors, women, or other vulnerable persons.
In addition, deportation does not necessarily mean danger “only” to the Afghan returnees themselves, but possibly also to the officials involved in the return process, such as police, border guards and embassy staff. After all, an internal armed conflict has been going on in Afghanistan for many years, with the country’s national security forces, backed by international forces, opposing several armed anti-government units; among them, above all, the radical Islamic Taliban, but also a regional branch of the so-called Islamic State. There are terrorist attacks, kidnappings, human rights violations and an economic and social misery. According to the United Nations Assistance Mission to Afghanistan (UNAMA), the armed conflict alone caused a total of 26,512 civilian deaths and 48,931 injuries between January 2009 and June 2017. European policy-makers rarely admit, however, that security concerns might be at the heart of the problem. Instead, they work in various ways to incentivise people to leave, and to disincentivise irregular stays.
But as a growing share of Afghan asylum seekers is rejected while at the same time, their return is seldom realistic, this ultimately leads to more irregular or semi-legal stays in Europe. In Germany, for example, most “non-returnables” from Afghanistan end up with the unstable legal status of “toleration” (Duldung), which merely means a temporary suspension of deportation and hinders integration. Swedish authorities can issue temporary residence permits in cases of long-standing obstacles to return, but most rejected asylum applicants who do not leave stay in the country without any legal status. Exact figures are not available, but the number of rejected asylum seekers that the Swedish Migration Agency hands over to the Police for forced removal is always far greater than the number of people actually leaving.
For Afghan nationals, the Swedish return rate is particularly low. Adults and couples without children, who do not cooperate with the authorities in organizing their return, are since 2016 not entitled to state-provided accommodation any more, and they have no right to minimum daily allowances nor to work.
The need for harmonisation and pragmatism
The fact that the asylum decision-making practice of the EU Member States varies enormously, even beyond the example of Afghanistan, is not a new finding. However, the range of variations in decisions is so drastic for applicants from Afghanistan that it challenges one of the cornerstones of the Common European Asylum System – the aim of a more uniform assessment of the protection needs of asylum seekers. A significant strengthening of the role of the European Asylum Support Office (EASO) could partly remedy the situation, for example if the Agency were given the power to review Member States’ decision-making practice and make (binding) suggestions for improvement in cases where the authorities of one Member State deviate particularly strongly from the mainstream EU practice. Full harmonisation, however, is likely to be achievable only if decision-making powers were centralized and communitarized, i.e. shifted from national asylum authorities to an EU agency.
Progress towards a further harmonisation of decision-making is essential especially with regard to the current search for a solidarity mechanism that would distribute asylum seekers more evenly across the Member States. It would be deeply unfair to allocate asylum seekers to a Member state where they would most likely be rejected, while they would receive protection if allocated to a different state. Already today, the rules of the Dublin Regulation mean that Afghan asylum applicants, who are transferred to Bulgaria or Hungary, are rejected in almost all cases, whereas a transfer to Italy or France would mean an above 80 % likelihood for them to be granted protection.
As for return policies, the example of Afghanistan speaks for an urgent need for more honesty, realism and pragmatism. On the one hand, the prominent argument that a credible asylum policy also includes the return of persons who are not entitled to protection is certainly plausible. On the other hand, if many asylum seekers are not granted protection while at the same time their repatriation is unreasonable, too risky or practically unenforceable, a credibility problem arises. Discussions about the difficulties of return policies often focus on an alleged lack of cooperation on the part of the persons obliged to leave or their countries of origin. It is also necessary, however, to ask the more fundamental question whether the national asylum authorities’ assessments of the security and human rights situation in the countries of origin of refugees is objective enough, or whether they are exposed to direct or hidden political interference that has less to do with the realities in sending countries than with the aim of reducing pull factors and limiting protection by means of a strict decision-making practice.
Finally, there is also a need to evaluate whether the current asylum laws and the existing bases for granting residence on humanitarian or practical grounds are sufficient to adequately resolve difficult human situations at the intersection of flight and migration. Perhaps they should be supplemented. For example, new provisions could enable authorities to grant a durable status after certain periods of non-enforceability of return obligations. Transitions from protracted limbo situations to legal migration statuses, such as for employment, study or training purposes, should also be envisaged. Otherwise, asylum policies – as in the case of Afghanistan, where protection is regularly denied but at the same time a termination of residence cannot be enforced – bear the risk of becoming illegitimate and untrustworthy.
This blog post is a shortened English version of an article that first appeared as “Asylsuchende aus Afghanistan und die Defizite des Gemeinsamen Europäischen Asylsystems” in Zeitschrift für Flüchtlingsforschung, 1 (2), 275–297.
This article is written in a personal capacity.