by Andy Lamey
The problem, however, does not stop at the airport. In recent years EU states may have eased travel restrictions for citizens of other EU states, but when it comes to non-Europeans seeking asylum, the overall trend has been in the opposite direction, in favour of increased restrictions of every kind, whether they concern employment, welfare or rights to appeals. Such measures are justified in the name of border control, by preventing unwanted economic migrants from making false asylum claims. Yet however reasonable such a goal may be in principle, to date there has been little sign that only economic migrants are affected by no-entry policies. Were no-entry policies effective at weeding out false claims, then logic holds that acceptance rates would increase after they are introduced. But European acceptance rates have rarely increased in the wake of tougher entry policies. Instead, both economic migrants and genuine refugees have been made to bear the brunt of Europe’s measures, the effect of which has been to make it more difficult for anyone to obtain asylum, no matter how well founded their claim of persecution.
The overall impact of Europe’s exclusionist turn is difficult to measure, as many people are discouraged from even attempting to obtain asylum there. One outcome that has been noted, however, is a race to the bottom, as European countries compete to appear even more unwelcoming than their neighbours. In Germany’s case, for example, a secondary contributing factor to its refugee influx was Sweden and Denmark making their own systems more restrictive. After Germany changed its system, increased pressure was put on the Netherlands, the United Kingdom and other countries, which in turn introduced more restrictive measures of their own.
Refugee advocates now speak of Fortress Europe. The fortress is not impenetrable: between 1995 and 2004, an annual average of 150,000 refugee applicants received permanent or temporary protection in European countries. But while the lucky ones were being accepted, an unknown number were either turned away or discouraged from even attempting to seek asylum by the many different no-entry policies now in place across the continent. If human rights were born in Europe, they now occupy an autumnal twilight there in regard to asylum.
Germany’s asylum crisis culminated in its loosening, but not abolishing, its descent-based model of citizenship. It is worth noting how this conception of belonging influenced the country’s treatment of refugees, both before and during the crisis. On the one hand, Germany’s understanding of what it was to be German had an inclusive aspect. This was evident not only in the fact that between 1990 and 1994 over 1.5 million ethnic Germans from Eastern Europe and elsewhere were granted citizenship, but also in West Germany’s ability to absorb over 12 million people before the Berlin Wall went up. During both periods, Germany’s right-of-blood approach to citizenship made a considerable difference for ethnic Germans seeking a new start inside Germany.
The flip side of the inclusiveness toward ethnic Germans, however, was a less welcoming attitude toward non-Germans. This was the case even though the dividing line between these groups was a shadowy one. Many of the ethnic Germans granted citizenship in the early 1990s came from families that had lived for decades outside of Germany and did not speak German. They would have appeared no more obviously German than the Bulgarian and Romanian economic migrants whose refugee claims were rejected. In spite of the ambiguity concerning who was an ethnic German, however, Germany’s ethnic approach to belonging still exerted a strong influence on its asylum program. In the lead-up to the constitutional amendment, the atmosphere of crisis was exacerbated by the classification of people making asylum claims as cultural foreigners who did not belong inside the imagined community of the German nation. Moreover, even when the old asylum clause was in place, Germany had a lower acceptance rate than countries of immigration such as the United States and Australia. As we have seen, these countries have their own problems when it comes to admitting refugees. But they have historically accepted a higher percentage of claims than Germany, whose average annual recognition rate between 1980 and 1989 was only 14 percent.
Germany’s restricted conception of citizenship meant that even when the asylum clause was in place, its effectiveness was limited by the country’s view of who did and did not belong in Germany. Arendt referred to such an arrangement, in which membership in a national ethnicity determined membership in a civic community, as “the perversion of the state into an instrument of the nation.” In her view, this was the defining feature of all Western states except the United States, which took a more welcoming view of immigrants. This phenomenon was of course far more extreme in Arendt’s time than ours, and large numbers of immigrants today routinely relocate not merely to Australasia and North America but also to Western Europe.
Nevertheless, it is still the case that national conceptions of belonging influence how welcoming a society is to refugees. Western European states such as France, Great Britain and Belgium have been termed reluctant countries of immigration. The phrase highlights the fact that, although such countries have historically admitted immigrants in significant numbers (in the case of France, there have been decades in which it has admitted more immigrants on a per capita level than the United States), the attitude toward immigration is nonetheless less enthusiastic than in former settler societies such as Australia and the United States, where immigration is part of the national mythology.
Germany is very much a reluctant country of immigration in this sense. And in this way it is indicative of a second larger trend—namely, the difficulty of enforcing the rights of asylum-seekers in countries with descent-based conceptions of belonging. Indeed, when viewed alongside some other descent-based societies, Germany’s reluctance to admit foreigners is comparatively mild.
Consider Israel. Like West Germany, its birth in the late 1940s was strongly influenced by events during the Nazi period. Even more so than the founders of the Federal Republic, the founders of the Jewish state were acutely conscious of the treatment of Jewish refugees. The founders of Israel never drew up a national constitution (because of an inability to agree on the relationship between synagogue and state), but in other ways the state they created would become similar to West Germany. The society that developed in Israel was one that embodied a descent-based model of belonging. But much like West Germany and its guest workers, Israel’s makeup is not homogeneous: 20 percent of its citizens today are Arabs. Nevertheless, when it comes to Israel’s immigration laws, the right-of-blood principle prevails. Under Israel’s famous law of return, Jews who migrate to Israel are automatically eligible for citizenship.
As in Germany, this conception of belonging has at times functioned as a force of inclusion. In 1992, for example, Israel was able to absorb 200,000 Soviet Jews, a remarkable feat for a country of its size. But also like Germany, Israel’s inclusive attitude toward members of its designated in-group has an exclusionary flip side regarding non-members. In Israel’s case, this is most evident in regard to the Palestinians, who enjoy no equivalent to the law of return, and instead comprise a population of more than 1.3 million people living in refugee camps that in some cases are now sixty years old. Unlike any other refugee group in the world, Palestinian families have been displaced long enough to pass refugee status on to their grandchildren.
The Israeli-Palestinian conflict is a familiar one. But what is less well known is that Israel has a second refugee problem. It has long taken an unwelcoming attitude toward asylum-seekers. Although Israel signed the Refugee Convention in 1951, it took the first hesitant and tentative steps toward entrenching the convention in its domestic laws only in 2002. A 2003 Tel Aviv University report suggested that the unwillingness of Israeli politicians to enforce the refugee convention was likely due to the Israeli-Palestinian conflict: “Possibly, one of the reasons why the implementation of the Convention was delayed until now was the fear felt by the State of Israel that applying the Convention would open the door to the return of Palestinian refugees to its territory.”
Whatever the cause, Israel today places a daunting set of obstacles in the way of an
yone who attempts to claim asylum. One major hurdle is the Israeli border itself. Highly militarized, it separates Israel from countries with which it is still legally at war. The border remains governed by a law from the 1950s that classifies anyone who might try to enter Israel by land without an entry permit as an “infiltrator.” As the Tel Aviv report summarizes the law, infiltrator status applies to “any person who has entered Israel knowingly and unlawfully and who is a national or citizen of Lebanon, Egypt, Syria, Saudi-Arabia, Trans-Jordan, Iraq or Yemen, or is a resident or visitor in one of those countries.” The law’s wide scope means that the tiny number of asylum-seekers Israel receives from Sudan, Iraq and other nearby oppressive states, a group that amounted to sixty people during the 1990s, are automatically classified as infiltrators and imprisoned rather than allowed to file asylum claims. In recent years, Israel has also been known to engage in instances of “hot return,” forcibly returning Eritrean asylum-seekers to Egypt, from where they have been sent back to Eritrea, the worst possible outcome for any refugee.
Even when refugees do manage to enter Israel, their problems do not end. Israel’s asylum system is highly secretive and bureaucratic, and the government does not publicize the fact that it is legal to seek asylum. People who manage to lodge a claim cannot legally work or receive public medical services, which obliges them to either work illegally or spend long periods in destitution. Should they seek a work permit they face the Catch-22 of having to first pay a fine, often thousands of shekels, to cover the period during which they had no legal status in Israel. Israel’s asylum system is so unwelcoming that UNHCR says it amounts to a form of “constructive refoulement,” one that provides strong incentives for refugees to return to or remain in the same countries where their lives are in danger.
Israel’s asylum problem may be extreme but it is not unique. A similar situation prevails in Japan, which has its own debt to Germany. During the second half of the nineteenth century, Japan looked to Germany as a cultural and political model to emulate. This was evident in everything from the Prussian military uniforms the Meiji emperor would parade in to the Prussian-inspired constitution Japan introduced in 1890. A strange quirk of Japan’s Germanophilia is that the East Asian nation is today a more direct descendant of nineteenth-century Germany than is Germany itself. As writer Ian Buruma has put it, “Much of what attracted Japanese to Germany before the war—Prussian authoritarianism, romantic nationalism, pseudo-scientific racialism—has lingered in Japan while becoming distinctly unfashionable in Germany.”
Contemporary Japan’s essentially nineteenth-century conception of belonging manifests itself in a variety of ways, including a suspicious view of foreigners. The influence of this attitude on Japan’s asylum system has been vividly documented by former Amnesty International caseworker Saul Takahashi, who worked in Japan in the 1990s, during which time he encountered an asylum system deliberately designed to turn people away. The experience of a Somali man named Ahmed whom Takahashi tried to help was typical: “He saw the people in the refugee division and told them that he needed asylum, that he couldn’t go back to his country. He asked them for help. They just kicked him out. No explanation, nothing. They didn’t even give him the form to apply. He is confused and angry. I am not. It happens all the time.”
Takahashi and other chroniclers of Japan’s asylum system depict something out of Kafka. Legal aid is “hopelessly inadequate,” so lawyers representing refugees must often do so pro bono. Even if a lawyer does decide to work for free, it is up to the interviewing officer whether the attorney will be allowed to attend the hearing or not. During the hearing, the applicant is expected to meet an “unusually high standard of proof,” as the UNHCR puts it, and is asked to present arrest records and other documents few refugees can provide. Once the hearing is over, the deciding officer can issue a negative decision without providing any reasons. Needless to say, not knowing what a decision is based on makes it difficult to appeal.
Japanese officials are quick to point to Japan’s record on helping refugees outside of Japan. In recent years Japan has been one of the top three donors to UNHCR, giving between US$75 and $110 million every year (only the United States and the European Union give more). Many countries fail to help refugees of any kind, whether abroad or at their borders, so Japan’s record of generosity to the UN is to be commended. Yet when Japan’s UN donations are measured in per capita rather than absolute terms, Japan’s ranking drops to seventeenth or twentieth place depending on the year. More importantly, the argument that Japan’s aid to refugees abroad allows it to ignore asylum-seekers at home is a bit like a hospital saying it is going to let leukemia patients die while it focuses on cancer patients. The two groups represent people in distress who need different forms of help, one through international aid, the other through migration law. Yet Japan is so uncomfortable offering the second form of aid that, as Takahashi puts it, “it is practically impossible to get asylum in Japan.”
Takahashi’s pessimism is born out by the minuscule number of people who are able to obtain Japanese asylum. In 2005, for example, when the United States recognized 18,766 asylum claims, Japan recognized 145—and that year’s level was unusually high. Between 1993 and 2002 Japan recognized an average of 27 asylum claims per year; between 1994 and 1997 it accepted exactly one asylum application a year. These statistics are the result of an asylum system designed not to protect refugees from danger, but to protect Japanese people from refugees.
Much like Israel, Japan represents German-style restrictiveness taken to an extreme. But in the degree of explicitness each country has been willing to write human rights into its constitution, Japan and Germany are opposites. Whereas Germany’s asylum clause was a ringing declaration of the right to asylum, albeit one that was undermined by Germany’s narrow conception of belonging, Japan’s commitment to human rights was artful and ambiguous from the start. The English version of Japan’s constitution prohibits discrimination by nationality or race and states that “all of the people are equal under the law.” The Japanese text, in contrast, replaces the unrestricted term “people” with kokumin, or “citizen of the country,” which of course excludes non-citizens. When read against the backdrop of Japan’s treatment of refugees, the difference in meaning between the two documents all too vividly illustrates the gap Arendt identified between the rights of citizens and those of human beings.
The asylum systems of Israel and Japan are among the most extreme of any democratic state. They highlight the inverse relationship that exists between the narrowness of a country’s conception of belonging and its ability to uphold human rights. In theory a descent-based society could respect the rights of out-group asylum-seekers by subjecting their claims to fair hearings and resettling those determined to be refugees in other countries. In practice, the ethnic favouritism that defines the migration law of descent-based societies makes it very difficult if not impossible for refugees to find asylum there.
The plight of refugees who seek asylum in countries that uphold a tight model of citizenship calls into question two arguments that are commonly made in refugee debates. The first is what we might call the geographic theory of refugee migration. This view was well expressed by Mark Krikorian of the Center for Immigration Studies, a Washington, D.C., think tank that advocates reduced immigration. “Asylum is analogous to offering a drowning man a berth in your lifeboat,” Krikorian has said, “and a genuinely desperate man grabs at the first lifeboat that comes his way. A person who seeks to pick and choose among lifeboats is, by definition, not seeking immediate protection.” This argument is often made by critics who say that the United States and other countries take in too many “bogus” refugees. A real refugee, they say, will run immediately to the nearest democratic state and seek asylum there. In Krikorian’s view, if someone bypasses one democratic country and files a claim in another one farther away, then that is a sign the person is not a true refugee.
If this view of asylum were true, then Israel and Ja
pan would receive more refugee claims than the United States or Australia. After all, both are democracies located near African, Middle Eastern or Asian crisis zones. Despite their frontline status, however, both countries receive only tiny numbers of refugee applications. Between 1993 and 2002, for example, Japan received an average of only 174 applications per year, while during the same period Israel averaged 150. (This period includes six years during which Israel received no applications at all.) In both cases, the brutally unwelcoming asylum program functions as a powerful disincentive against refugee arrivals. Just as Mohammad Al Ghazzi asked around about Canada, Sweden and Australia while he was in Syria, it is common for refugees to put some forethought into where they will run. Anyone who looks into the possibility of seeking asylum in Israel or Japan quickly discovers that it is a lost cause and redirects their energies elsewhere.
This shows the problem with the geographic theory. Geography obviously plays some role in determining where refugees will flee, but it is not the only consideration. Refugees’ decisions about where to escape to are also influenced by whether or not the country they run to is likely to accept them. To borrow Krikorian’s metaphor, they care whether or not the country they will place their faith in really is a lifeboat. This practice is sometimes dismissively referred to as “asylum shopping.” In reality it is a reasonable and necessary precaution to take regarding a decision that is potentially a matter of life and death.
The case of Japan highlights a second problem, namely, the concept of a safe third country. Many countries today now have signed safe third country agreements. As in the case of Germany, such agreements allow a country to turn away refugee applicants who have passed through another nation that has signed the Refugee Convention and have the applicants file their claim in the first such country they entered. That Japan and Israel have signed the Convention shows it is not much of a safeguard.
