Migrant or Asylum Seeker: Is the distinction still relevant?

A view on the “Rapid Screening” phase of the New EU Pact on Migration and Asylum

By Shamin Asghari

A young Afghan man was born and raised in Iran. He does not have an official resident permit, even though his parents have been living in Iran for the past 30 years. He has a paper which prevents his deportation, although it is not clear for how long the paper is valid, or what is the eventual legal status of those who have this paper. What is clear is that paper holders are recognized as Afghan by the Iranian government. It will not give him full access to rights and services; he does not have fair and secure access to the labor market; his children will only have limited access to education if the regulations do not change in the future. In sum, he is living in a limbo: he cannot make any plans for his future; his life is entangled with deprivation, poverty, vulnerability and risk, even if such risks are not “immediate risks of persecution”. He starts a dangerous uncertain journey towards Europe in hope of protection.

Each year, a large number of people move around the globe, pursuing different goals. Some of these international migrants have the privilege of moving through regular ways but many do not. While categorization of international migrants is helpful for policy and legal purposes, current categories, including asylum seeker and irregular migrant, are not empirically accurate, nor can they serve the people who are on the move. Nonetheless, states still insist on adhering to these concepts.

A recent example of such old-fashioned emphasis is the New EU Pact on Migration and Asylum, proposed by the European Commission. The pact introduces a pre-screening phase that aims at closing the borders for migrants who are “not asylum seekers”, and, hence, considered irregular migrants. Screening will happen outside the EU border, within a maximum of 5 days, and should determine the main legal track through which an applicant will move forward. In other words, if a migrant is determined to be an asylum seeker after screening, he/she can enter the EU and his/her case for protection will be further assessed. Otherwise, he/she will be labeled as an “irregular migrant” and will have to enter the return process. This process will expand the current categorization of migrants to the point that even a migrant’s claim of asylum should be verified; while currently, the asylum seeker status will be granted based on the migrant’s claim alone and verification is only necessary for the refugee status.

There are many issues which cast doubt on this initiative, including the accuracy of a rapid assessment, or lack of clarity regarding the location of pre-screening – does outside the EU borders mean in a third country or is it indeed inside the EU’s territorial jurisdiction; each case raising several legal questions.

What I would like to raise is the relevancy of the distinction between “irregular migrants” and “asylum seekers” which is the foundation of the new pre-screening phase. While this distinction might have previously made sense in terms of providing protection for those at immediate risk, today and with new migration concepts, the distinction seems to push more people outside the scope of international protection.

For instance, protracted displacement and long-term residence in transit countries – where migration status is inherited by second and third generations – have drastically changed traditional concepts of origin country, risk and vulnerability. The example mentioned at the beginning is a clear case of a complicated displacement/migration situation.

At first glance, our young man cannot prove that he is at risk of persecution; a criterion necessary for refugee status determination based on the 1951 Convention. He has lived in a stable country his whole life and have access – although limited – to certain services. With implementation of the new rapid screening phase, he will not have the chance to explain details of his vulnerability; he requires enough time and even a semi/judicial procedure to provide evidence regarding his life circumstances. He will most probably be labeled as “irregular migrant” and be returned. To where? He does not have a legal status in Iran, where all his ties are. He does not have any ties with Afghanistan, even though on paper he is Afghan.

Many people who decide to migrate share the same story. A reality that shows the extreme distance between categorization of international migrants and their lives and needs. The EU commissioner for home affairs, Ylva Johansson, has also mentioned the importance of hearing the human side of migration stories. However, designing a migration regime based on the null distinction between “irregular migrants” and “asylum seekers” will ignore this human side even more, and push the migration discourse farther from empirical reality. Instead, it is time to build a new discourse for international migration. If the movement cannot be prevented, the solution should become more flexible and aim towards embracing mobility rather than eradicating it.

A rapid screening phase to quickly separate irregular migrants and returning them to the country of origin is a band-aid on a bullet wound. It might push the problem outside the EU borders and create protracted displacement situation similar to the one faced by the Afghan young man in our case study. It does not lead to a responsive and protection-based migration regime. More Morias and more Aylan Kurdis will be expected, but this time, the EU is not to blame.

Shamin Ashgari is an external PhD candidate at Van Vollenhoven Institute for Law, Leiden University, the Netherlands. For her thesis, she is working on Afghan migrants’ local integration in Iran from a socio-legal approach. She is also involved in the TRAFIG project and will perform research on Afghans displacement in Iran. Alongside her research projects, she works as a humanitarian worker providing protection for vulnerable Afghan migrants in Iran.

The views and opinions expressed in this blog do not necessarily reflect the opinion of the TRAFIG Consortium or the European Commission (EC). TRAFIG is not responsible for any use that may be made of the information contained therein.

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