The ongoing conflict between migration policy and European Union democracy
Is it truly possible to form a co-dependent syndicate out of internationally independent States? Can a group of sovereign states achieve a unification which incorporates pure democracy and impenetrable solidarity? From a background which consists of colonization and bloodshed over the acquisition of territory, the post-World War system produced a breakthrough in the areas of trade liberalization and international treaty-making. Among these advancements was the European Coal and Steel Community; an effort to secure peace between victors and vanquished after World War Two, which would eventually blossom into the complex institutional structure of today’s European Union (EU). After adopting a common currency, responding as a unit to terrorist threats and international human rights violations, surviving more than one global economic crisis and tackling the extant global pandemic, democracy and unity within the Union are concepts which somehow remain surrounded by a semblance of scepticism. The present writer will proceed to outline the digressing perceptions of democracy within the Union by analysing the current state of affairs of the EU migration policy.
The issue of democratic deficit has been appraised by the Von der Leyen Commission, under which a new push for European democracy is anticipated. This will be characterized by a Conference on the Future of Europe which allows citizens to actively participate in decision-making, an improvement of the lead candidate system and modes for transparency and closer-cooperation (Von der Leyen, 2019, p.19). Albeit the fact that these goals harbour the possibility of a democratically sounder European Union, there is evidence that the Member States’ perspectivism of democracy differs vastly.
- Democracy in Context
“In a democracy, important public decisions on questions of law and policy depend, directly or indirectly, upon public opinion formally expressed by citizens of the community, the vast bulk of whom have equal political rights.” (Weale, 1999, p.14) Accordingly, the focus must be on constructing a migration policy which somewhat represents the collective EU-opinion, because migration affects all actors within the Union. Dahl developed two basic dimensions of democracy; competitiveness of decision-making and political participation (Dahl, 1989, p.221.). As expressed by John Stuart Mill, this enables large democracies to “limit the sovereignty of the individual over himself” (Mill, 1859, p. 140.). In the EU, Article 2 of the TEU recognizes democracy as a key value of the Union and links it to principles such as respect for human and minority rights, and rule of law. Therefore, migration policy must be developed in an atmosphere of compromise and tolerance, and decisions must be made to protect the rights of all concerned parties. There must be an incorporation of direct democracy exercised through the surveyance of public opinion (Dalton et. al, 2001, p.142), because citizens who elect government representatives should not subsequently have to remain voiceless for the remainder of their term in office.
- Beyond the 2015 Migrant Crisis
In 2015, almost two million migrants entered Europe, seeking asylum from unsafe conditions in their countries of origin (BBC News, 2016). This sparked a crisis which necessitated years of migration policy reform. The Union was divided not only in the varying degrees to which Member States were affected but in their independent responses to the crisis. Among some of the most memorable; German Chancellor Angela Merkel pledged Germany’s support and offer of temporary residence to refugees in her famous “Wir schaffen das!” speech, despite resistance from multiple fronts. Contrarily, there were reports in Hungary of the deliberate starvation and detention of migrants (UN News, 2019). Italy, being a main entry point for refugees crossing the Mediterranean Sea, widened its government deficit in an attempt to finance the entry of migrants.
The national migration policies which were hastily adopted often clashed with EU law standards, for example with the common visa requirement and free movement of the Schengen area. These events exhibited the need for greater solidarity and democracy within the decision-making structures of the Union. Five years later, the Union has been able to birth a response to its migration situation. The EU stance on immigration is characterized by resettlement programmes, enhanced border controls and security, and visa policy reforms. These policies- although making strides on the international scene- are struggling to remedy the democratic inadequacies of the 2015 crisis.
Germany has recently enhanced its open-door policy, and passed a new Skilled Immigration Act, the “Fachkräftezuwanderungsgesetz” in March 2020 (Sanderson, 2020). This provides an easier channel for migrants with professional or non-academic training from non-EU countries to work in Germany and seeks to lessen the priority given to EU nationals in fields where there is a strong demand. The Kreditanstalt für Wiederaufbau (KfW) found in a survey that 44 percent of Germany’s working-age population favoured a higher intake of skilled migrants and 21 percent advocated for a reduction thereof (Leifels, 2019, p.1).
An analysis of these facts reveals that democracy in Germany is viewed as a reflection of general public consensus gathered from past responses to similar topics, and is a reflection of national values. This is because the general proclivity towards migrants is evident in German policy, as is the partial disdain towards their presence. For example, the pressures from far-right actors in the government led to the controversial German Orderly Return Law (Geordnete-Rückkehr-Gesetz), catering for a sped-up deportation process and bolstered police presence on the nation’s borders to deter asylum seekers. German democracy is strongly rooted in the preservation of human rights, and this evidenced in its continued receptiveness towards migrants since 2015. While the EU is being criticized for decreasing its Mediterranean rescue efforts, German cities have petitioned to take in more refugees in January 2020, despite the existing EU distribution system (Davis, 2020). Consequently, the political attitude of Germany towards migration reveals a unique aspect of its democracy: it incorporates the public opinion, and places at its apex the conservation of human rights.
After the crisis shook Europe, the European Union set up a mandatory refugee redistribution system which was rejected by the Hungarian government (Juhász et al., 2015, p.15). The response of Hungary varied greatly from the German disposition. There are reports of the deliberate starvation of asylum seekers in detention, and refusal to allow the transit through Hungary of migrants seeking asylum in Germany and other European Countries (UN News, 2019). The Hungarian Helsinki Committee has appealed to the European Court of Human Rights and won several appeals against the Hungarian government for using starvation as a deterrent (Mrav, Amiel, 2020). Special Rapporteur for the United Nations, Mr. Felipe González Morales reported the prevalence of government-run campaigns associating migrants with security threats such as terrorism (UN News, 2019). This mode of shaping the public opinion suggests that democracy in Hungary is perceived as the will of the people as determined by authoritative precedent and interventions.
In May 2020, the Hungarian government closed border container camps after the European Court of Justice ruled that migrants were being held unlawfully. However, under the leadership of right-wing Prime Minister Viktor Orban, the government released a statement saying the act of the Union was risky and harmful to Europe’s security. Orban, on several occasions, has expressed his desire to transform the country into an “illiberal state”, and this clearly presents a distinct form of democracy. Participation and rule of EU law are not main concerns of Hungarian democracy. Contrary to J.S. Mill’s theory, Hungary does not seek limit its powers over itself, but to expand them in a nationalistic environment.
Italy’s public opinion figures over history have revealed it to be a ‘fertile ground for far-right politics’ for decades (Gattinara, 2017, p.324). Moreover, there has been popularity of anti-refugee campaigning which, similar to Hungary, may have influenced public opinion. Public opinion suggests that Italians are oriented towards the Hungarian disposition, however, government actions have suggested otherwise. After being disproportionately overwhelmed by the COVID-19 pandemic, Italians have passed a new policy to regularise undocumented migrants working in agriculture, as part of a financial stimulus package approved by the coalition government (Reidy, 2020). Moreover, Italy has been working closely with the European Asylum Support Office (EASO) to improve the policies and support of asylum seekers, and alleviate the financial burden as part of the EASO’s Italy Operating Plan for 2020. As a result, it appears as though Italy’s democracy is not particularly shaped by the public opinion, and similar to Germany, is closely linked to the protection of human rights. Italy has always valued the ability of the Union to work together to share the burden of the migration crisis, and this reveals a unique aspect of solidarity within its democratic framework.
The chaos ensuing from the European migration situation is indicative of a dearth of unity within the Union. Despite the existing EU-wide asylum policy, the divergence among national policies fuels the continuing malaise in its effectiveness. A functional democracy should lead to effective decision-making, and this has not entirely been the case in the EU. In cases where a centralized opinion is extracted and an EU law is passed, some dissenters abscond from implementation. A possible plan of action is an internal re-alignment of the concept of democracy within the EU, characterized by internal workshops and discussions. These could revamp the commitment of all Member States to the objectives of the Union and ensure that all Members, who made the independent decision to accede to the Union, are ever-willing to assimilate their national values to the Union objectives.
Unless all Union members harmonize approaches to distribution, asylum laws, border security and resource commitments, the growing disunity and fragmentation may seriously impede European Integration (Kyriakopoulos, 2019). As elucidated by the European Commission, this effort must be complemented by transparency and public involvement. This way, should future crises arise, the Union would be better able to issue a united response in a prompt and efficient manner. Europe, with its economic and political power, indeed has the tools to become “the world’s beating heart of solidarity”, as beautifully espoused by President von der Leyen herself.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion of IFAIR e.V. or its members.
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Elinam De Souza holds an LL.B. from the University of Ghana and is currently an LL.M. student in European and International Law at the Europa-Institut of Saarland University. Her focus of study is European Economic Law and International Trade Law, and she has a keen interest in human rights and global development. She has partaken in several forums discussing international concerns, including the annual EuroSim debate and the Leiden University Summer School and Moot Simulation in International Criminal Law. She aims to contribute to efforts focused on tackling regional and global issues by enhancing national legal systems and improving international cooperation.