Migration has become a prominent political issue in both the US and Europe. One could argue that it has always been a visibly controversial and divisive issue – and certainly so in the past ten or fifteen years. What is different this year, however, is how rapidly it has risen to the top of the political agenda both in the US and Europe. The heating up of the migration debate may be attributable to its easy manipulation by populists in a significant year for elections in both the US and Europe. But it is clear that the record numbers of people seeking to migrate have been aggravated by the unusual ways that the legal framework for what one might call “irregular” or “unauthorized” migration have come to dominate the debate. The following commentary assesses the European and French context of the migration debate, with some preliminary comparisons with the US context. A separate commentary is planned to reflect further on recent developments in the US.
As an American, I am aware of the fact that both the United States and Canada (and perhaps even Mexico) are countries of predominantly immigrant populations. The countries of Europe, too, may have experienced disruptive demographic movements by virtue of having been the battleground of two world wars in the twentieth century (and, of course, other more regionally fought wars in previous centuries).
Setting aside the past history of either North America or Europe, though, the issue today has to do with more recent migratory movements. The focus, in other words, is on current numbers and proportions of foreign-born. This is measured for the US as anyone who was born outside of the United States; for Europe, it applies to anyone who was born outside of Europe – or, to be argumentative about it, born outside of the 27 member states of the European Union plus Switzerland and Norway but separating out the UK since its departure from the EU.
In the US, then, the country with the highest number of immigrants in the world, the number is some 51 million out of a population of 340 million, or some 15.7% of the total. In Europe, on the other hand, the EU reports a total of 86.7 million or approximately 11.6% of the total population of 448 million. But, of course, since the EU is not a nation-state, the data need to be dis-aggregated by country to show a much higher concentration of the migrant population in Germany (15.8 million or over 18.1%), France (8.7 million (or over 12.7%) or, for that matter, the UK (10.4 million or 14.8%).
These countries do have varied concentrations of non-European ethnic groups – Turks in Germany, North Africans in France or South Asians in the UK. But, on the whole, close to 70% of European migrants are from within Europe. In contrast, the intra-American migrant population in the US is only 25.2% of the immigrant population. So there are significant differences in the immigrant populations between the US and Europe.,
That said, the nature and causes of the immigration debate facing both the US and EU today are distinctly about the influx of people who are classified as “irregular” or “unauthorized”. These are the ones who are crossing the borders or seeking to stay within the borders of the US or the EU without visas or other forms of documentation to do so. There are, to be sure, different circumstances between the US and Europe on this matter. The US has seen much larger numbers of people crossing its very porous southern border, both numerically and proportionally, than the Europeans have seen along its own porous borders. And of course, the geographic and geopolitical composition of migrant-originating countries is also different. Nonetheless, both the US and Europe are South-to-North migrant-stimulating magnets in a world where stark inequalities in livelihood opportunities are ever growing to reinforce the power of both pull and push on these “irregular or unauthorized” migratory routes.
Whatever the policies and statistics may be for legally authorized migrants, the growing numbers of people who are seeking to migrate into the US and Europe far exceed the numbers of those who are legally certified to migrate. And what does this actually mean – being a migrant without a legal document for entry into the EU or the US? In the past, these “unauthorized” migrants would typically slip across the border, trying to evade border controls. Today, this has been supplemented by people actually choosing to surrender themselves to border officials and requesting asylum.
Asylum under international law is tied to the 1951 UN Convention and 1967 Protocol on Refugees that the US codified into the Refugee Act of 1980 and that most if not all European countries have also ratified. The Europeans also have the European Convention on Human Rights and the EU Charter on Fundamental Rights that at least indirectly cover refugee and asylum rights.
Under the UN Convention and Protocol, anyone fleeing their home country due to past persecution or well-founded fear of future persecution on account of race, religion, nationality, membership in a social group or political opinion has certain rights of asylum in countries that have ratified these provisions. A refugee is recognized as having these rights, while asylum seekers may invoke a claim to these same rights. While this commentary takes note of the millions of people who are recognized as refugees, the focus here is on how the same provisions are applicable to asylum seekers.
Asylum is, in fact, an adaptation of the legal option that exists for refugees – people who are fleeing persecution or the fear of persecution in their home country. The refugee establishes this prior to entering the refugee-granting country. The asylum seeker typically arrives at the entry point without having established his or her status in advance. For this to work, of course, the fleeing individual has to show that he or she is experiencing or risking persecution in one or more of the same five categories as a refugee – race, gender, ethnic status, religion and/or political opinion.
It is at the border of entry, then, that the border official has to have the means to channel these asylum requests and perhaps even verify their validity. While there have been ups and downs in the numbers of asylum seekers attributable to political conflagrations and other forms of political repression, the current situation is that more people are seeking asylum than either the US or the EU are politically – or even physically – able to manage.
Of course, the absorption capacity is a debatable one – anyone merely looking at how to keep these rich economies going will acknowledge that even more millions of migrants, whether in need of asylum or not, are needed to maintain economic growth than are actually coming in. One can certainly argue that existing legal paths to migration into either the US or the EU are insufficient for meeting either the needs of the US and EU for steady economic growth or to accommodate the visa applicant pool, especially from developing countries. But it is the unique visibility of how these undocumented migrants are physically crossing the borders and of how distorted the asylum tools and standards are for managing their arrivals that make for an increasingly contentious political debate.
In the US, the monitoring and processing of these migrants is in federal hands, including the matter of determining who qualifies or does not qualify for asylum. For that reason, Congressional legislation has been at the forefront of any reform effort. There are, to be sure, border states that have been trying to bypass federal jurisdiction with more anti-migrant actions (and even legislation), and elsewhere in the US there have been “sanctuary cities” that have resisted federal enforcement against undocumented migrants. But the federal oversight includes an exclusively federal authority to interpret international asylum law, such as it exists. (The US Supreme Court will be addressing a challenge to federal authority by the state of Texas in the coming days.)
In contrast, the EU handles this differently. Although each member-state within the EU controls its own immigration policies, including on granting of asylum, the EU Charter on Fundamental Rights and the European Convention on Human Rights do require states to comply with basic standards. Added to these obligations, however, the EU-level Schengen rules have come to specify that anyone holding a legal residency document (whether a residence permit or nationally administered visa) in one EU member state has the right to be in any other EU member state. This includes, of course, those foreigners who only need a passport and not a visa to enter any of the EU countries.
This Schengen agreement also puts an EU responsibility on ensuring that its borders are secure, albeit in collaboration with the border control operations of EU member states on the borders. Most border officials are themselves national, not EU, officials. They screen the passports or resident permits of all arrivals into the EU. That means that anyone without an entry document can be turned away – unless the person chooses to claim the right to asylum.
The receiving of an application for asylum, then, remains a member-state function. And for this reason, the separate EU’s Dublin Regulation stipulates that any request for asylum has to be processed by the country at the migrant’s entry point, regardless of where that person might be wanting or intending to go within the EU. Of course, if the asylum seeker expresses the intent, for example, to join an existing diaspora in Germany, the Greek border authorities would have an interest in letting the Germans decide whether to grant asylum.
It is this burden on the southern “border” states (Greece and Italy but also Spain and Cyprus and Malta) that has complicated the EU-wide sharing of migration absorption responsibilities. As became evident in the massive flowing of Syrians, Afghans and others fleeing civil wars in 2015 and 2016, the border states clearly did not want to be the only ones taking them in, while many of the transit countries within the EU did not want them showing up at their borders, even if only in transit to Germany or elsewhere.
Nonetheless, it is both at the EU level and the member state level that compliance with the international and EU law on migrants and refugees has been applicable. Following the dramatic increase of people seeking asylum in the EU in 2015 and 2016, overwhelming the southern border points in Greece, Italy, Malta and Cyprus, it was EU officials who took several steps to manage the overflow. In particular, the EU actively negotiated with countries like Turkey or Tunisia or Libya (or more recently Mauritania) to hold back more of the asylum seekers coming from countries like Syria or Afghanistan or Sudan. (Turkey, by the way, already had and still has the largest refugee population in the world.) And, given the overwhelming number of applicants, the EU was confronted with the question of whether to interpret the asylum applicant’s claim for asylum more or less restrictively.
Official asylum application numbers for EU member states were a record 1.3 million in 2015 and 1.2 million in 2016. In 2017, a package of reform proposals sought to deliver more EU-level support for the borders and for the management and relocation of asylum seekers. Some were adopted, including the formation of a European Union Asylum Agency, but others involving how to handle border responsibilities and the relocation of asylum seekers to other EU countries were among the issues that remained unresolved.
Nonetheless, asylum applications dropped down to below 800,000 in 2017 and all the way down to below half a million in 2020 (the worst year of the pandemic also contributing to the reduced numbers). Meanwhile, in the aftermath of the 2015-16 influx, anti-immigrant parties gained prominence in Austria and other mostly eastern EU countries. And countries like Germany and Sweden that had willingly taken in record-numbers of asylum seekers also witnessed the emergence of anti-migrant sentiments fanned by extreme right-wing political parties. France, too, saw the emergence of an extreme-right populist (Eric Zimmer) on top of an existing extreme-right National Front (renamed National Rally or Rassemblement National) under Marine Le Pen. (And, then there was the hostility to intra-European migration leading to the Brexit vote in 2016, but that was a somewhat different matter.)
Following the EU Parliamentary elections of 2019, a new EU Pact on Migration and Asylum was put forward in 2020. It envisioned an expanded role for EU border controls, including policing the Mediterranean by the EU border control agency Frontex but also enabling speedier rejection of unqualified asylum seekers. It seemed to flounder for awhile but was finally approved in December 2023, for implementation prior to the next round of European Parliamentary elections in June of 2024.
The impetus for the reforms was reinforced by another upward cycle in asylum applications, approaching one million in 2022 and over one million in 2023. This new pact expands EU support for border management and clarifies the common asylum procedures and data collection that each member state should be following. But it does not change state-by-state immigration laws nor the Dublin Regulation that designates the responsibility for receiving initial asylum applications in the same first entry countries at the EU’s borders.
In spite of this, though, most of the actual processing of asylum applications is being conducted in countries other than the border countries . In 2022, for example, Germany handled 25% (217,500) of all EU applications and France handled 16% (or 137,500). The same source (EU) shows German applications for 2023 at 243,835, and France at 156,455. The first-entry countries of Spain and Italy have each retained a significant share, as has Austria, but all three have considerably lower numbers than either Germany or France .
The new European Pact aims to redistribute the processing more equitably among all 27 member states. In fact, any member state that declines to take their proportionate share will now be charged a penalty on a per/case basis below their proportionate share, with the proceeds going to help finance the EU’s asylum-related activities. But the key is that the new EU Pact has allocated more EU support for border control and processing of asylum claims at the borders. Putting this into effect before the European Parliamentary elections should reduce the appeal of the anti-immigrant groupings on the extreme right. Current polling does show increasing support for extreme candidates/party lists, including Le Pen’s party in France. But the broadening of authority to stop asylum seekers is not necessarily a welcome development for the parties and groups to the left.
In France, too, the growing appeal of the National Rally was a factor in the Macron administration’s promoting an immigration reform package that was ultimately passed by the French National Assembly in December 2023 . The original bill put forward by the Macron administration combined stiffened screening and deportation measures with a generous proposal for irregular asylum seekers to be eligible for residence permits following evidence of becoming successfully employed. However, Macron’s party (Renaissance) did not have a majority in the Assembly, and the administration opted to solicit votes from the right-of-center Republicans who wanted much stricter anti-asylum measures than were in the original bill.
Human rights groups and the parties to the left had already opposed the original legislation as anti-migrant rights, and they became even more vociferous in their opposition as it was amended to appease the Republicans at several points along the way. The bill that finally passed even had Le Pen’s National Rally party support, while close to 40 of Renaissance members voted against or abstained. Embarrassingly, Marine Le Pen claimed it as a “ideological victory” for her party when it passed. While President Macron insisted it had not needed the National Rally members of the National Assembly to pass the bill, it was indeed embarrassing that the bill was restrictive enough for them to end up supporting it (as did most of the center left Republicans, of course).
Fortunately, the bill also required a review by the French Constitutional Council, which “censored” 35 of the 86 more draconian provisions in the legislation, mostly on procedural grounds. These censored provisions included those that would have curtailed the naturalization rights and access to social benefits of migrants generally. But the legislation was still opposed by the advocates of reform, joined at this point by the Republican and National Rally delegates who had only supported it with these restrictive measures. But the French process being what it is, the Macron government was able to go ahead with enacting it without the 35 censored articles. This truncated bill became law on January 26, 2024, with effective dates along the way into 2024 and 2025.
Reform advocates would like to see an expanded definition of asylum and more receptivity to the granting of asylum. They have also been very critical of EU practice to externalize migration controls and even humanitarian responsibilities to third countries like Tunisia or Mauritania. But the momentum for now is clearly in an increasingly restrictive direction – and not only in France! Extreme right parties have been gaining strength in other EU countries, like the Netherlands, Italy, Austria, Slovakia and, of course Hungary. And they have made this a prominent issue in the European parliamentary elections in June, where they are expected to increase their representation. While the center-left and center-right coalitions are likely to retain an overall majority, the growing strength of the far right is certainly pushing the EU to be more restrictive rather than less restrictive when it comes to border controls and standards for granting asylum,
