Directive 51

In all likelihood, the past month will be remembered as a turning point in the European migration drama. Germany has effectively suspended Dublin II, the EU treaty that compels asylum seekers to register in the first European country in which they arrive, for Syrian refugees. Meanwhile, it has pledged not to cap the number of refugees it accepts, daring other European countries to step up.

Across Europe, Germany’s sudden openhandedness is outmatched only by that of the wider public, from football clubs to private citizens, who have given millions of euros’ worth of food, clothing, and shelter. For these people, one image has come to symbolize the crisis: the photograph of a three-year-old boy, Aylan Kurdi, slumped lifeless in the Turkish surf. It was both shocking and familiar. For years, the public has absorbed reports of refugees dying in overcrowded, barely seaworthy boats launched across the Mediterranean Sea.

And such images—regardless of civilian solidarity, renegotiation of quotas, or even a comprehensive suspension of Dublin II—will continue to pour in. People-smugglers will still charge thousands of dollars to pack desperate migrants on rickety boats. This is because the main reason that migrants choose boats, EU Directive 51/2001/EC, is not up for amendment or, at this point, even for debate.

The EU directive was passed in 2001. Put simply, it states that carrier companies—whether airlines or ship lines—are responsible for ensuring that foreign nationals wishing to travel to the European Union have valid travel documents for their destination. If such travelers arrive in the EU and are turned away, the airlines are obligated to foot the bill for flying them home. The airlines can also be penalized between 3,000 and 5,000 euros per infraction. To avoid the fines, airlines have become diligent about preventing anyone without the proper passports or visas from getting on their planes.

Aimed at combatting illegal immigration, the directive does seem to make an exception for asylum seekers: “the application of this Directive,” runs Clause 3, “is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees.” But airline staff is not qualified to examine the claims refugees, and the companies prefer to err on the side of caution. In practice, the caveat amounts to little more than lip service.

The EU and its member states need to take responsibility for examining refugee claims, instead of leaving it to airlines.

Indeed, thanks to the directive, the European Union has been able to relieve itself of the responsibility of examining the claims of most asylum seekers, shifting the burden onto private companies. The net effect is that the first filtering of refugees, instead of being handled by trained case officers, is generally left to check-in clerks, who are instructed by their companies to refuse travel to anyone not reasonably certain to be allowed to enter the European country of their destination. This acts as an automatic deterrent—and it drives people onto the smuggler boats. There is no other reason for families to pay thousands of euros for room on a floating death trap rather than a few hundred euros for seats on a short and convenient flight.

If Europe is serious about preventing more deaths in the Mediterranean, it needs to scrap the directive, or at least replace it with a more humane and equitable arrangement. For one, the EU and its member states need to take responsibility for examining refugee claims, instead of leaving it to airlines. The EU also needs to lift the penalties on airlines that bring refugees into Europe. Finally, the costs of deportations—when necessary—should be picked up, or at least shared, by the member states and the EU.

The removal of the restrictions on air travel would, potentially, increase the number of people lining up to claim asylum. Larger questions of the right to asylum and free movement aside, Europe should be able to cope with such an increase. Germany is already removing caps on the number of refugees it is willing to accept and promising to massively decrease the processing time for asylum requests. Other member states can follow suit, setting up speedier procedures for the examination of asylum requests and, if necessary, deportation.

The EU can back up member countries by setting up a Europe-wide infrastructure for initial filtering of claims on arrival—filtering done by trained and publicly accountable case officers, not by airline check-in clerks—and a shared European fund to cover deportation costs. Such a system would also significantly increase documentation, control, and follow-up of cases: it is easier to register and keep track of individuals arriving in an airport than of people landing on empty beaches and trying their best to stay under the radar until they reach a preferred destination of asylum. As an alternative, the EU could set up primary processing facilities in a safe country outside the EU, and the guarantee of hazard-free passage there for claimants—although it is difficult to see which country would shoulder the burden of becoming the union’s bottleneck.

To be sure, these options would require generous funding; but then again, they would render proposed military campaigns against smuggler strongholds unnecessary. European officials have been circumspect about the projected costs of such a campaign, but the sheer scale of it and the involvement of navies and air forces suggest that it would be a costly one. With the rug pulled out from under the smuggling trade, conversely, funds could be channeled from war chests toward a more responsible and sustainable solution. This would also incur a much smaller cost in human lives than a military campaign. (Indeed, for now, the idea of destroying smuggler fleets before migrants board the boats and going after the more notorious smuggling gangs is moot anyway, after this spring’s drowning of hundreds of refugees in a single incident off the Italian coast.)

The European Union has the power to eliminate the smuggling economy with a stroke of a pen. Abolishing 51/2001/EC would also pull the teeth out of Dublin II and even lift some of the strain from the negotiations over quotas: given a choice, refugees would prefer traveling to wealthier EU countries that offer greater potential for a new start, not Greece or Hungary. The governments adamantly opposed, for one reason or another, to actually accepting more refugees can make their contribution to the effort by helping fund the European processing and deportation fund, or by putting money toward providing a new start for refugees settling in more welcoming parts of Europe.

The changes happening inside Europe are crucial, and will go a tremendous way toward securing and improving the lives of those refugees who survive the journey. The deeper challenges of bringing freedom of movement and civil rights up to speed with a globalized, interconnected world will still be there, and will probably occupy us all for a generation to come. But if Europe wants to stop people dying by the thousands in the Mediterranean, it’s not enough to be waiting ashore with blankets, or even to send rescue ships. If Europe wants people to stop drowning, it needs to let them fly.