From Right to Favor

From Right to Favor

The refugee question as moral crisis.


EDITOR’S NOTE: This essay is based on a lecture delivered at the Einstein Forum in Potsdam, Germany, on December 3, 2015, and draws on material previously published in Revista Dialectología y Tradiciones Populares and Mittelweg 36.

Since the November 13 attacks in Paris, which killed 130 people and injured 350, and the New Year’s Eve melee in Cologne, where the police recorded 379 allegations of sexual assault and robbery, it has become increasingly difficult to have a sensible discussion about the refugee question in Europe. Even though the perpetrators of the Paris attacks were almost all French and Belgian citizens, and the suspects in Cologne were mostly Moroccans and Algerians, politicians, commentators, and citizens throughout Europe have pointed to the events to justify the rejection of asylum seekers from Syria and elsewhere in the Middle East. They allege two things: a possible fifth column of terrorists traveling among the asylum seekers, and the impossibility of integrating these refugees into Western societies. What has been lost in the debate is the recognition that the recent influx of asylum seekers and the wave of anxiety it has generated have revealed the refugee question rather than having created it. Indeed, there is a long-standing distrust and hostility in Europe toward non-Europeans fleeing persecution and violence.

The so-called European refugee crisis is a moral issue before it is a demographic one, and the extent to which it even is a demographic issue is not entirely clear. At the end of 2015, the European border agency Frontex released statistics about the entry of 710,000 migrants into the European Union from January through September. These “massive numbers,” as the report characterized them, made headlines and fueled xenophobic reactions across the continent. It was only after the figures were criticized by human-rights activists that the agency added a “clarification” on its website explaining that “a large number of the people who were counted when they arrived in Greece were again counted when entering the EU for the second time through Hungary or Croatia.” It is estimated that this overcounting has increased the figures by probably one-fourth, thereby exaggerating the perceived size of the influx. Similarly, the obstacles on the Eastern European routes created to deter the movement of people seeking to reach Germany or Scandinavia have produced a glut of dramatic images of crowds blocked behind border fences, clogged at passage points, or confined in train stations, which have also fed anxieties all over Europe.

In reality, the 500,000 to 600,000 migrants who, according to the adjusted estimation of Frontex’s figures, entered the European Union during the first nine months of 2015 represent barely more than one person per 1,000 of the total EU population. In contrast, refugees in Lebanon count for approximately one-fourth of the country’s population—proportionally, 250 times more. And in comparison with other historical periods, the current refugee tally is barely higher than that of the early 1990s, when people fled to the EU from conflicts in the former Yugoslavia. The problem today is the unequal distribution of these asylum seekers among the nations of the EU. For first-time asylum applicants between 2014 and 2015 as recorded by Eurostat, there is a stark contrast between countries that have refused to take their share—notably the United Kingdom and France, with an increase from 2014-15 of 19 and 20 percent, respectively—and countries that have demonstrated their willingness to offer protection to refugees, such as Germany (with 442,000 new asylum seekers in 2015) and Sweden (with 156,000), representing an increase of 155 and 108 percent, respectively.

With parity and solidarity among EU members sorely lacking, what could have been a collectively manageable problem has been met with populist rhetoric in some member states and led to a costly generosity on the part of others. The criticisms expressed in Munich on February 13 by French Prime Minister Manuel Valls against German Chancellor Angela Merkel’s refugee policy, which he called “unsustainable,” represent a clear indication of the profound divide among European leaders with respect to the values of the 1951 Geneva Convention. “Europe cannot take in all migrants from Syria, Iraq or Africa,” Valls stated. “It has to regain control over its borders, over its immigration or asylum policies.” The fact that Valls is the head of a socialist government, whereas Merkel leads a center-right coalition, shows that the crux of the refugee crisis is more moral than political.

These tensions are hardly new: Over the past four decades, the status of refugees and the parameters of asylum in Europe have been reshaped by changes in both the political representation of the individuals concerned and the evaluation of their claims’ legitimacy by government officials. Whereas many European states once regarded asylum as a right, they now increasingly treat it as a favor. In parallel, the image of refugees had to be transformed, from victims of persecution entitled to international protection to undesirable persons suspected of taking advantage of a liberal system. The situation of the millions of Syrians fleeing the civil war in their country epitomizes this reversal: The sympathy aroused by the tragic photograph of a drowned Syrian child whose body washed ashore on a Turkish beach on September 2—one of close to 3,500 such fatalities last year, the greatest proportion of which have been coming from Africa—was short-lived. In a matter of days, sympathy had lost out to animosity and the politics of fear.

* * *

Under the 1951 Geneva Convention Relating to the Status of Refugees, a refugee is any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” The convention was limited to the victims of “events occurring before 1 January 1951,” meaning that it pertained exclusively to people in Europe who were the victims of World War II. It was not until 1967 that the UN’s Protocol of New York generalized Geneva’s protection to anyone who fits its definition of a refugee. However, it soon became obvious that the globalization of asylum, especially the principle of treating all victims fairly, was taking a profoundly asymmetrical and unequal path. To put it schematically, in the Global South, there are refugees, and in the North, there are asylum seekers. The difference is not just one of terminology or even status; it is a fundamental difference of recognition.

In the Global South, the general pattern is that people fleeing violence go to a neighboring country, where they are usually gathered in camps. Such is the situation today for the hundreds of thousands of Afghan refugees in Pakistan and Iran, of Syrian refugees in Turkey and Jordan, and of Somali refugees in Kenya. The 10 countries with the highest number of refugees are all in Asia and Africa, with Turkey and Pakistan each having more individuals under their protection than the entire European continent. By contrast, in the Global North, the general pattern is that of people requesting the protection of nations in Western Europe and North America through administrative channels. Such is the experience of tens of thousands of asylum seekers in France, Britain, and Germany, although the country with the greatest number of them in the world is South Africa, which alone counts for one-third of the total number—more than all of the asylum seekers in the European Union. According to the latest statistics from the United Nations High Commissioner for Refugees (UNHCR), dating from June 2015, of the 2.3 million asylum seekers in the world, 798,000 were in South Africa and 678,000 in Europe, with the report calling for “caution” in the latter case “because of the reported instances of the same individual being registered multiple times across the continent.”

This geographical distribution has important repercussions. In the Global South, people are collectively considered to be refugees based simply on their being a fugitive from a war zone or a country with a climate of political repression. In the North, they are regarded as asylum seekers, with each claim being individually assessed through inquisitive procedures, at the end of which a minority will be granted refugee status. There also exists a sort of intermediate option, resettlement, by which certain countries from the Global North, such as the United States, Canada, and Australia, establish quotas for refugees at camps in the South, who are selected according to specific criteria and given authorization to immigrate—an arrangement which is nothing less than a market of compassion.

This divide between South and North, however, has been challenged by the recent evolution of conditions. Precarious settlements that function like refugee camps exist not only in Africa and Asia but also in Europe, as has been the case near Calais in northern France, where until March some 6,000 people lived in squalor in a settlement known as “the Jungle” before it was dismantled by the government of François Hollande, which had given the refugees this waste ground one year earlier but decided to get rid of it once it had been equipped with tents, wooden shacks, medical units, and other necessities with the assistance of NGOs.

In France, as in most European countries, the individual examination of applications is the only path to asylum. Two institutions perform this triage: the French Office for the Protection of Refugees and Stateless People (OFPRA), an administrative institution whose officers initially evaluate the claims, and the National Court of the Right of Asylum (CNDA), a judiciary institution in which magistrates adjudicate the appeals of rejected claimants, and whose proceedings I observed for six months over the course of 2009 to 2010, attending approximately 100 hearings.

Ideally, the recognition of the “well-founded fear of being persecuted” should be a relatively straightforward matter based on the asylum seeker’s stories and supporting documents. The account of past events (violence endured or exposure to threats), accompanied by material evidence (passport or identity card proving origin and citizenship, newspaper articles or trial proceedings, medical or psychological certificates), attests to the probability of future persecution were an applicant to return to her country. However, there is always the possibility that an applicant’s story could be based on lies and her documents forged. The examination of her claim is therefore an inquiry into its truth.

When evaluating the truth of a claim, officers and magistrates look for two qualities: veracity and sincerity. If the account and the materials provided correspond with what the officers and magistrates know or imagine of the situation in the applicant’s country, then the claim has veracity. If coherence between the alleged facts of the case and the applicant’s personality and attitude can be inferred from an interview or a hearing, then the applicant is thought to be sincere. Over the past few decades, however, the emphasis has shifted from the veracity of the account to the sincerity of the person.

Even so, veracity and sincerity are both difficult to assess. Acknowledging a narrative as truthful and an individual as trustworthy requires a level of trust. The most remarkable change in the politics of asylum over the past few decades has been the reversal of trust into mistrust. Confidence dominated in the mid-1970s, when more than nine out of 10 claimants in France were granted asylum. By contrast, doubt appears to have taken firm hold in the mid-2000s, when barely two out of 10 claimants obtained refugee status. The comparison between a criminal court and an asylum court is instructive: Whereas in the former those accused of a crime are deemed innocent until proven guilty, in the latter those who are allegedly victims of persecution are suspected of lying until their trustworthiness is established. In criminal court, the judge and the prosecutor have clearly separate functions; in asylum court, the magistrates are prosecutors during the hearing and judges during the deliberation. Forty years ago, almost all claimants were granted asylum in France; today, most of them are rejected.

* * *

How to account for such an evolution? Why would the Vietnamese boat people who fled Communist repression in 1978 be so different from the Somali boat people fleeing Al-Shabaab’s exactions and civil war in 2015? Why were the former rescued and eventually welcomed in Europe and the latter left to die in the Mediterranean?

The official explanation of this change in status focuses on the downturn in the French economy in the mid-1970s. The apparently benevolent attitude of Western countries in the two decades following the ratification of the 1951 Refugee Convention was largely the result of two overlapping contingencies: the need for a workforce to rebuild European countries after World War II, and the political tensions associated with the Cold War. Refugees from the Global South and Communist regimes were welcomed, and their employment contracts served as residence permits and spared them the trouble of dealing with the asylum bureaucracy; most potential claimants did not even bother to apply for refugee status. Often living in poor conditions in hostels or slums on the periphery of cities, these migrants were harshly exploited in industry as well as in agriculture. From 1954 to 1974, the proportion of non-citizens in France doubled, notably with the arrival of Spaniards and Portuguese fleeing both poverty and dictatorship. During those years, the authorities were not very concerned about the distinction between economic migrants and asylum seekers. The number of refugees in the mid-1950s was around 420,000, or more than one-quarter of the 1.8 million foreigners living in France.

Beginning in the mid-1970s, the French government was confronted with rising unemployment, especially among unskilled workers, due to the restructuring of the industrial sector and the impact of the oil crisis. To tackle the problem, the government decided to close the borders to labor migration. According to the official explanation, this led many newcomers in the country to seek asylum, the avenue that seemed at the time the most favorable to obtaining residency documents. This interpretation is only partly valid. Indeed, whereas it is probable that some economic migrants became asylum seekers after the mid-1970s, it is also certain that until then, most victims of persecution had been content with a mere employment contract. The paradox of the new policy was that, whereas asylum seekers had been indiscriminately welcome as economic migrants for 30 years, they were now suspicious for being just that. Today, refugees count for less than one-twentieth of all foreigners residing in France: 194,000 out of 3.9 million.

* * *

This evolution was due to the greater scrutiny of asylum seekers. As the influx of claimants increased from 2,000 in the early 1970s to 50,000 in the early 2000s, institutions became stricter in their examination of applications in order to distinguish legitimate claims of asylum from illegitimate ones. The authors of the latter were called, at best, “economic refugees” and, at worst, “bogus refugees.” According to the authorities, it was not because of increasingly restrictive policies that the number of applications granted refugee status declined. Rather, it was because more applicants with fraudulent claims or false identities were trying to take advantage of the liberality of the system. The cases of “asylum fraud” that received a great deal of media attention in the 1980s seemed to confirm this distinction, although a systematic investigation of fingerprints conducted by the administration at the time established that only 3 percent of all claimants were spurious.

In fact, contrary to the official account, changes in the liberality of the institutions in charge of granting asylum do not correlate with fluctuations in the number of claimants. Despite irregular variations in the latter, the initial admission rate has regularly decreased in France since 1976. If the officers were being rigorous because migrant workers were knowingly misrepresenting themselves as asylum seekers, one would have expected that the more claims there were, the more severe the agents would have been in their assessment. A close look at the statistics proves otherwise. Although the yearly number of claimants in the early 1980s and the late 1990s averaged 20,000, three times more applicants were granted asylum in the first period compared with the second. For similar numbers of applications in 1976 and 1996 (approximately 18,000), or in 1986 and 2006 (roughly 26,000), the admission rate decreased fivefold in the 20-year interval. In other words, the decrease in admissions, which is manifest in terms of absolute figures as well as proportion, is difficult to explain by a simple transfer of economic migrants into the pool of asylum seekers.

An alternative explanation is that the decline is mostly the result of a change in politics. It is not because there are more bogus refugees that the authorities have become more selective; rather, it is because the authorities are being more selective that more asylum seekers are rejected and declared bogus refugees. Why is this so? One generally restricts the interpretation to a political question: As immigration became more controlled in France, asylum seekers were assimilated into the category of unwanted immigrants. The mistake—i.e., of an asylum seeker for an immigrant—has to seem self-evident in order to even happen. As it turns out, the moral grounds of this confusion were established through a radical change in the perception of the asylum seekers by French society—that is, in the evaluation of their claims and the emotions they provoke.

* * *

In the years immediately following the ratification of the 1951 Refugee Convention, the public image of refugees in France was dominated by two major populations: at first, the survivors of the camps of World War II and, later, the victims of Communist regimes in Eastern Europe. Commiseration with the former and respect toward the latter were the prevailing moral sentiments. Humanitarianism and realism converged. And only these two populations were a cause for concern because, until 1967, when the New York Protocol was ratified, the convention’s protection concerned only Europeans.

In the 1970s, two new waves of asylum seekers garnered much public sympathy: Chilean resistance fighters fleeing Gen. Augusto Pinochet’s dictatorship after the 1973 coup, and the Vietnamese boat people who started to appear in 1978. The response of the French government and populace to their misfortune was mixed with admiration in the first case and compassion in the second. Neither the suspension of labor migration nor the increase in the number of asylum claims by a factor of 10 during the 1970s prevented politicians of all parties from expressing solidarity with both groups. In those years, although immigration had begun to be seen as a threat for both economic and security reasons, the moral image of refugees remained positive: Their narratives were scarcely questioned and their documents rarely challenged. In the context of the diminishing Cold War, France and most European countries were still trying to preserve a space for human rights between the Communist regimes and the Latin American dictatorships.

But from the 1980s onward, the attitude of the authorities changed drastically. Both the national and international contexts were different. On the international stage, the fall of the Berlin Wall marked the end of the East/West divide. The new Europe of Schengen was increasingly obsessed with protecting its borders. Refugees from the Global South became the targets of xenophobes, and asylum policies were integrated into the broader program of immigration control in the European Union. Meanwhile, at the national level, increasing unemployment and the emergence of the far right placed immigration at the center of a hostile public debate. Racist crimes multiplied, leading to the historic 1983 March for Equality and Against Racism in France. French politicians were no longer willing to distinguish asylum seekers from undocumented immigrants.

In this new context, those seeking refugee status were regarded with suspicion. Their word was viewed as deceptive. Despite what was known at the time about the persecution of Chechens in Russia, Tamils in Sri Lanka, and Darfuris in Sudan, members of these groups rarely garnered sympathy, and the number granted asylum hardly exceeded one out of 10. Even foreign nationals from Haiti, after the 2010 earthquake had caused major damage in a country already suffering from chronic political violence, or from Congo, affected by a civil war responsible for an estimated 3 million deaths, never attracted the kind of support shown to people who had fled comparably tragic environments in the past. Wariness now curbed compassion.

How, then, does one explain that most asylum requests in France today result in rejection when, not so long ago, nearly all requests received a favorable response? In light of my interviews with rapporteurs and magistrates who had lengthy experience of asylum court, the only morally tolerable answer for them is to make a distinction between the value of asylum and the worthiness of those who claim it. The refugee-selection process has turned asylum into a scarce good. By creating this scarcity, the process transforms each decision into what sociologists call a “tragic choice,” because the possession or deprivation of asylum puts the lives of the individuals concerned at risk. In this case, for the claimants, refugee status is truly vital, both since its possession provides access to social rights and because its deprivation can threaten a person’s very existence. Yet for the rapporteurs and magistrates, the tragic choice has a second dimension: Asylum as an abstract principle, of which refugees are the concrete manifestation, is also always endangered. The rapporteurs and magistrates see themselves as striving to protect the purity of the principle and authenticity of the claims from putative fraud and abuse.

The evaluation of asylum claims is now based on a remarkable paradox. The more suspicious magistrates and rapporteurs are of the claimants and their evidence of potential or actual persecution, the more valuable the abstract principle of asylum becomes. The high proportion of rejections, far from leading officers and magistrates to question the reality of the protection offered by the 1951 Refugee Convention, reinforces asylum’s virtues; the greater the discredit that befalls asylum seekers, the more valuable asylum becomes. I have sometimes seen a UNHCR assessor acting as the most inquisitorial official in a hearing and the most inflexible one during deliberations. In such circumstances, the institution guaranteeing the rights of refugees appears to be the one making asylum status inaccessible.

* * *

Yet moral sentiments are rarely consistent. As the traditional rationales for granting asylum were being discredited, two new categories escaped this moral downgrading: girls at risk of being subjected to female circumcision in their home country, and men and women declaring they had been persecuted for being homosexuals. In both cases, the criterion cited was that of the “social group,” a category drawn from the 1951 Refugee Convention.

The first category—those at risk of female circumcision—was introduced by a series of legal decisions handed down in France by the National Court of the Right of Asylum in 1991; a 2001 decision expanded the definition of those at risk of political persecution to include the girl’s or woman’s parents. Although Mali was one of the most peaceful and democratic countries on the African continent during the first decade of the 2000s, the admission rate of Malians seeking asylum in France over that same period jumped from 0.1 to 75 percent. Malian nationals eventually boasted, in proportional terms, the highest rate of successful claims in France—12 times higher than Kurds from Turkey, and 75 times higher than political opponents of the regime in Bangladesh, two countries where repression was intense. Most claimants under this new ruling are from Western African Muslim countries.

The second category—gay and lesbian persons—was created in 1999. The legitimacy of the claim is established according to the same criteria used in cases of alleged persecutions for political opinion: Asylum seekers have to prove that their sexual orientation has been made public through their behavior or even their declaration of it, thereby putting them at risk of being the targets of homophobia. Most applicants in this category are from Muslim countries in North Africa, the Middle East, and Central Asia.

Both social groups—girls at risk and their parents, and gay and lesbian persons—benefit in France from a particular liberality of the asylum administration, especially when compared with individuals persecuted for political, religious, or ethnic reasons. In court, the hearings of the former are often held behind closed doors with few questions asked—a stark contrast with the long, trying, and public questioning of the latter—and the final decisions are far more favorable. As a result, one has a significantly higher probability of being granted refugee status by claiming to be at risk of ritual circumcision or homophobic harassment than by alleging to be in danger of persecution as a political opponent of the government or the member of an oppressed minority. The higher legitimacy granted to gender and sexual-orientation issues—including so-called forced marriage and sex trafficking—over traditional forms of persecution signals a shift in moral hierarchies, with certain human-rights violations becoming more valued than others.

The generosity of the protection offered to girls or women at risk and their parents, as well as to gay and lesbian persons, has two political consequences. First, it radicalizes the image of the uncivilized and undemocratic “other.” Genital mutilation is barbarous, homophobia nefarious; Africans who practice the former exhibit their backwardness, while Muslims who display the latter show their intolerance. Second, it reinforces the liberality of the West as a promoter of women’s rights and sexual equality, at the same time that it deflects attention from both the growing lack of sympathy for asylum seekers on racial, ethnic, national, religious, or political grounds, and the increasingly dismissive and hostile attitude of governments toward immigrants in general.

* * *

To understand asylum trends in Europe, it is also important to grasp how state officials and activists view the relationship between the political economy of immigration (i.e., the means of restricting the influx of people crossing borders) and the moral economy of asylum (the values and effects attached to the internationally recognized principle of providing protection to refugees). This, however, is rarely done.

On one side, the authorities state that the two economies are completely distinct: One has to control the borders as well as protect refugees. This official version is not only repeatedly proclaimed, but has taken an extreme form recently: We have to close the borders to avoid the infiltration of terrorists, but we will grant asylum to “real” refugees as long as they’re selected in so-called hot spots on the frontier of Europe, where the dirty work of human triage can be done without witness. The only way to adjust this view to what happens on the ground is to affirm that most asylum seekers are in fact economic migrants, which is the reason why they are rejected. But this interpretation is belied by the facts—most notably, as I have shown, by statistical data.

On the other side, human-rights organizations routinely link the moral economy of asylum and the political economy of immigration. They argue that officers and magistrates reject claims because they have been told to help contain the demographic flux across borders. This view presupposes the duplicity of the agents, who would be adjudicating claims according to criteria alien to asylum. This interpretation is not supported by my fieldwork; most officers and magistrates are genuinely persuaded that, independent of any exterior pressure from the government or public opinion, they are making a good decision when they accept or reject a claim. They were convinced they were doing the right thing when they were granting asylum to more than nine out of 10 claimants, and nowadays they are just as convinced in the fairness of their judgment when they are denying asylum to eight out of 10 applicants, even though the stories told in the past were not more credible, and claimants today are compelled to provide more evidence than ever before.

To untangle this knot, one has to distance oneself from both the justifications of the government and the conspiracy theories of the activists. Neither is entirely inaccurate, but each is insufficient. Some migrants are probably making unfounded claims, as in earlier days. And politicians have often wittingly manipulated facts about claimants so as to legitimate their change in policy. Yet by thinking about the moral economy of asylum, one can avoid both self-indulgent justifications and conspiratorial interpretations. The reality is that officers and magistrates can be convinced they are defending an abstract ideal while discrediting those who appeal to it, and that society at large can adhere both intellectually and emotionally to this view, according to which France remains the homeland of human rights, while rejecting more asylum seekers than almost any other European country (its admission rate is half of the EU’s average).

The current situation of refugees in Europe is marked by this discrepancy between words and acts, between the official language of rights and the actual practice of exclusion, and its justification through the discrediting of asylum seekers and the disqualification of their claims. It is increasingly difficult to dismiss the fact that most refugees come from countries like Syria, Iraq, Afghanistan, Somalia, Sudan, or Eritrea, where political violence and persecution have reached extreme levels. The naked truth of Europe’s unwillingness to respect its international commitments thus appears in full light: What used to be a right guaranteed by the community of states is reduced to a sort of favor granted to the happy few. Selective humanitarianism has replaced legal entitlement.

* * *

The hundreds of thousands of people crossing through the Balkans from the Middle East and across the Mediterranean from Africa in search of protection have not created a moral crisis. Rather, they have revealed a latent moral crisis that has been brewing for several decades, beginning with the decay of the 1951 Refugee Convention’s ideals.

The agreement reached between the EU and Turkey on March 18 marks the collapse of the principles adopted in 1951. It provides that all asylum seekers, whatever their citizenship, who reach the Greek coast will be forcefully returned to Turkey, a country whose entry into the EU had been refused a few years ago because of its violations of human rights, and whose government has since then become much more authoritarian. Additionally, for every potential Syrian asylum seeker deported from Greece, another one currently housed in a Turkish camp will be relocated in Europe. The resettlements cannot exceed 72,000 people, which factors out to approximately one-fifth of the 363,000 Syrians who have applied for asylum in the EU in 2015. Although already practiced elsewhere—Australia, for instance—this externalization of the asylum procedure is unprecedented in Europe. By preempting the possibility of refugee status being claimed by people from the Middle East fleeing persecution, the joint-action plan counts as the ultimate renunciation of the international right to protection established after World War II.

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