Asylum seekers and refugees continue to face serious obstacles in their efforts to access asylum. Some of these obstacles are inherent to irregular migration, including dangerous border crossings and the risk of exploitation. Yet, refugees also face state-made obstacles in the form of sophisticated migration control measures. As a result, refugees are routinely denied access to asylum as developed states close their borders in the hope of shifting the flow of asylum seekers to neighboring countries. Restrictive migration control policies are today the primary, some might say only, response of the developed world to rising numbers of asylum seekers and refugees. This has produced a distorted refugee regime both in Europe and globally — a regime fundamentally based on the principle of deterrence rather than human rights protection. While the vast majority of European states still formally laud the international legal framework to protect refugees, most of these countries simultaneously do everything in their power to exclude those fleeing international protection and offer only a minimalist engagement to assist those countries hosting the largest number of refugees. By deterring or blocking onward movement for refugees, an even larger burden is placed upon these host countries. Today, 86 percent of the world's refugees reside in a low- or middle-income country, against 70 percent 20 years ago (Edwards 2016; UNHCR 2015, 15). The humanitarian consequences of this approach are becoming increasingly clear. Last year more than 5,000 migrants and refugees were registered dead or missing in the Mediterranean (IOM 2016). A record number, this makes the Mediterranean account for more than two-thirds of all registered migrant fatalities worldwide (IOM 2016). Many more asylum seekers are subjected to various forms of violence and abuse during the migratory process as a result of their inherently vulnerable and clandestine position. As the industry facilitating irregular migration grows, unfortunately so too do attempts to exploit migrants and refugees by smugglers, criminal networks, governments, or members of local communities (Gammeltoft-Hansen and Nyberg Sørensen 2013). The “deterrence paradigm” can be understood as a particular instantiation of the global refugee protection regime. It shows how deterrence policies have come to dominate responses to asylum seekers arriving in developed states, and how such policies have continued to develop in response to changes in migration patterns as well as legal impositions. The dominance of the deterrence paradigm also explains the continued reliance on deterrence as a response to the most recent “crisis,” despite continued calls from scholars and civil society for a more protection-oriented and sustainable response. The paper argues that the current “crisis,” more than a crisis in terms of refugee numbers and global protection capacity, should be seen a crisis in terms of the institutionalized responses so far pursued by states. Deterrence policies are being increasingly challenged, both by developments in international law and by less wealthy states left to shoulder the vast majority of the world's refugees. At the same time, recent events suggest that deterrence policies may not remain an effective tool to prevent secondary movement of refugees in the face of rising global protection needs, while deterrence involves increasing direct and indirect costs for the states involved. The present situation may thus be characterized as, or at least approaching, a period of paradigm crisis, and we may be seeing the beginning of the end for deterrence as a dominant policy paradigm in regard to global refugee policy. In its place, a range of more or less developed alternative policy frameworks are currently competing, though so far none of them appear to have gained sufficient traction to initiate an actual paradigm shift in terms of global refugee policy. Nonetheless, recognizing this as a case of possible paradigm change may help guide and structure this process. In particular, any successful new policy approach would have to address the fundamental challenges facing the old paradigm. The paper proceeds in four parts. Firstly, it traces the rise of the deterrence paradigm following the end of the Cold War and the demise of ideologically driven refugee protection on the part of states in the Global North. The past 30 years have seen the introduction and dynamic development of manifold deterrence policies to stymie the irregular arrival of asylum seekers and migrants. This array of measures is explored in the second part of the paper through a typology of five current practices that today make up “normal policymaking” within the deterrence regime. Third, the paper argues that the current paradigm is under threat, facing challenges to its legality from within refugee and human rights law; to its sustainability due to the increasing unhappiness of refugee-hosting states with current levels of “burden-sharing”; and to its effectiveness as direct and indirect costs of maintaining the regime mount. Finally, the paper puts forward three core principles that can lay the groundwork in the event of a paradigm shift: respect for international refugee law; meaningful burden-sharing; and a broader notion of refugee protection that encompasses livelihoods and increased preparedness in anticipation of future refugee flows.
Khlaifia and Others v. Italy
