Earlier this month, the Polish government proposed the adoption of a controversial Hungarian policy: the construction of so-called container camps to detain arriving asylum seekers while their claims are assessed. The move, which would put camps near Poland’s border with Belarus, would risk violating both EU and international law, yet the response of EU member states has so far been muted. The EU, facing so many other challenges, is too weak to fight with the governments whose support it still needs. Knowing as much, Poland and Hungary have taken to punching the European Commission on the nose, playing to receptive Eurosceptic voters at home.
Beyond that, in the particular case of the container camps, such camps may contravene the fundamental right to asylum, but they do not stray too far from ideas already floating among mainstream governments in other EU member states. And as long as the EU fails to condemn such policies or offer its own response to the migration issue, container camps and similar efforts will only become more popular. All this feeds into the ongoing battle within the EU between philosophical values and pragmatic needs.
A FLAWED RATIONALE
Both Poland and Hungary have claimed that the new policies will improve security and address the tricky issue of onward movement of asylum seekers across Europe. Under European rules, asylum seekers must seek protection in the first member state they enter; in practice, however, the burden has fallen unevenly across nations, and asylum seekers tend not to abide by those rules. Indeed, few of the 170,000-odd asylum seekers who arrived in Hungary in the 2015 frenzy waited around to hear the outcome of their claims, preferring to move further west. These arrivals were part of a larger flow through Turkey and Greece and up through the Western Balkans. This traffic was then diverted to Slovenia after the Hungarian government erected a wall across its borders with Serbia and Croatia later in 2015.
Poland has not faced the same scale of migration as Hungary; asylum claims hovered around 12,000 per year in 2015 and 2016 (the average for the previous five was roughly 9,500 per year). Russian nationals, largely of Chechen origin, accounted for slightly more than half of these claims, with very few Syrian or Iraqi applications. Most asylum seekers are thought to have moved on to Germany or elsewhere. Just a handful have been granted status in Poland. During the summer of 2016, the number attempting to cross the Polish–Belarusian border rose significantly, with most coming from Russia and Central Asia. The Polish government claims that the majority are economic migrants, not potential refugees.
These numbers are far from the “crisis situation” that Poland and Hungary have suggested necessitates the widespread use of detention, as the current inflows are well below earlier levels amid the closure of the Western Balkan route and EU–Turkey deal shutting off most of the crossings to the Greek islands. EU law states that asylum seekers should only be detained under exceptional circumstances and as a last resort, and that detention should be both proportional and necessary. In reality, a far larger number of Ukrainian nationals have arrived in Poland in recent years with little fanfare; over 430,000 first-residence permits were issued to Ukrainian nationals in 2015 alone, more than double the number issued to a single nationality by any other EU member state during that year. Difficulties obtaining refugee status in Poland mean the vast majority have chosen to make use of Poland’s generous labor migration regime, rather than claim asylum.
THE EU'S MIGRATION PROBLEM
It is still unclear how the Polish container camps would actually operate, and what safeguards would be in place to ensure that individuals are not mistreated. But existing practice does not bode well. Reports from Human Rights Watch and the Polish Commissioner for Human Rights, among others, have highlighted that many of those arriving on the Polish border with Belarus have been summarily turned away after a perfunctory assessment, and many have been denied the opportunity to make a claim for asylum altogether. Of the 60–80 daily arrivals during the winter months, just one or two have been allowed into Poland. In Hungary, meanwhile, just ten people are admitted from Serbia each day into a transit area where they are detained. Although they are allowed to return to Serbia, they are not allowed further into Hungary itself.
To be sure, Poland’s national-security claims do have a kernel of truth to them. It is a sad reality that deficiencies in the identification and registration of migrants and asylum seekers arriving at Europe’s external borders, coupled with weaknesses in intelligence cooperation between member states, have created risks. The number of potential terrorists is likely to be a tiny fraction of the overall flow, but the screening chaos witnessed in Greece and elsewhere in 2015 has given room for the promotion of blanket detention as the only safe response. This is a blunt and disproportionate reaction, and one that ignores the real needs of those who are arriving seeking refuge. It is also inconsistent given that there has been, so far, no suggestion that similar measures be imposed along the longer, more porous border between Poland and Ukraine.
Also in Hungary and Poland’s defense, as they have noted, is that they are not the only countries to propose the use of containers and pre-fabricated facilities to house and detain asylum seekers. The sheer scale of migration during 2015 and 2016 led a number of European countries—including Sweden and Germany—to resort to housing arriving refugees in conditions they would not otherwise consider, including in army barracks, pre-fabricated containers, and tents. These were considered exceptional measures borne out of necessity; national and local governments worked hard to move people out of makeshift housing as quickly as possible. Given the very low numbers arriving in Hungary and Poland, the use of containers and the poor conditions in so-called transit zones are far less justifiable. But since thousands of asylum-seeking arrivals have been housed in Greece in substandard conditions for more than a year, despite the provision of millions of euros in EU emergency funding, it has become easier for the Polish government to defend its behavior.
Since thousands of asylum-seeking arrivals have been housed in Greece in substandard conditions for more than a year, it has become easier for the Polish government to defend its behavior.
The main qualitative difference between an asylum seeker stranded on Lesbos and one who might find himself or herself on the Polish or Hungarian border is the vetting process used and the risk of being summarily returned to conditions that may not be considered “safe” under existing EU law. The speed and inadequacy of the assessment at the Polish border—a three-minute interview with an untrained border guard in some cases—does not meet the EU criteria of a comprehensive individual assessment of the refugee’s needs.
As goes Poland, so go may other member states. A number of them are already chafing against what they see as overly burdensome legal processes agreed to in Brussels during calmer times. Indeed, informal discussions have begun between member states as to how best to dilute existing legal definitions of “safe” non-EU countries, to speed up refugee assessment and return.
The Polish and Hungarian governments wish to send a message to would-be arrivals: find alternative routes or abandon the endeavor altogether. The message from other EU countries is equally stern: over the past two years, EU initiatives—from the EU–Turkey deal to efforts to manage departures from Libya—have been as much about signalling as about substance. The Hungarian approach may seem draconian and distasteful to other European governments, but they welcome the policies’ effects on migration into their own countries. They are also aware of their reliance on Hungary and other countries if flows increase once more across the Western Balkans.
The Polish and Hungarian governments wish to send a message to would-be arrivals: find alternative routes or abandon the endeavor altogether.
Beyond that, it is clear that Poland is trying to test the limits of EU membership. Increased border control is only one of a set of new illiberal policies that include changes to the constitutional court, increased control over state media, and suspension of funding of immigrant and asylum support organizations. The European Commission could respond with review procedures and press releases, and hope that its paper threats are taken seriously. But previous inaction has already reduced the commission’s credibility.
The initiation of legal proceedings to challenge countries such as Poland and Hungary to bring their asylum laws into line with EU standards is already overdue. They are not the only ones breaching standards of reception and detention; certainly, conditions in Greece are just as bad. But taking member states to court would carry its own risks. Most other member states have expressed far less outrage at the actions taken by Hungary and Poland than has the commission. If these states do not back the commission, the EU’s bluff may be called. Much of the EU’s institutional enforcement power depends on few realizing that the emperor is standing in his underwear.
THE MIGRANT POLICY OF THE FUTURE?
From a domestic point of view, Hungary and Poland are in a win–win situation. Either the commission is a boorish and domineering entity, unacceptably curtailing the sovereign powers of member states that merely wish to keep their citizens safe, or it is a bureaucratic blowhard—noisy but ultimately weak.
This is not just a political battle. The absence of any robust, common and reasonable mechanism for speedy assessments of migrants and asylum seekers at Europe’s external borders has created a vacuum for poorly considered national initiatives such as Hungary’s container approach. The Polish announcement has certainly rattled a European Commission fearful of the contagion effect of Hungarian populism, and may now catalyze legal action. But the window of opportunity to effect deep reform is narrowing fast.
Improving immigration, asylum, and security cooperation across the EU requires not only profound legislative overhaul—and the application of significant financial and human resources—but also (ironically) additional pooling of sovereignty across the EU. For a set of member states increasingly aware of the security of their own borders and the success of nationalist political narratives, the latter may prove too much to contemplate. In this scenario, Poland and Hungary may well just be waiting for the rest of the EU to come around to their way of thinking.