NOTE: This post may be updated as the situation develops.
Update, 10/16/15: European Union leaders met on Thursday, October 15 to discuss a potential deal between the 28-member bloc and Turkey—one of the main hubs for migrants fleeing to Europe. As a result of the talks, the member states decided to support a plan to reduce the flow of migrants and refugees to the Old Continent. Europe promised to consider offering Turkey up to $3.4 billion in assistance, visa liberalization for its citizens, and reopening of negotiations about the country’s membership in the EU in exchange for Turkey taking additional measures to stem the entry of migrants to the EU from that country. However, the Turkish foreign minister stressed that the deal is still being drafted and an agreement has not yet been reached. The EU leaders also agreed on a set of measures meant to secure the bloc’s external borders, including detention of asylum-seekers, EU agency control over external borders and encouraging countries with large refugee within their borders to take steps to keep them there.
Original Post: President Obama recently announced that the United States will accept at least 10,000 Syrian refugees during the next fiscal year as a response to the current humanitarian crisis in Europe. This summer, the number of migrants traveling to Europe seeking asylum far surpassed totals from previous years and overwhelmed the systems put in place to process asylum seekers.
To address the pressing issue, the European Union interior ministers recently agreed to relocate 120,000 asylum-seekers across the 28-state bloc and process new migrants through “hot spot” checkpoints, mostly located in southern Europe. The deal was reached despite strong opposition from some of the Eastern European member states, and many details have yet to be worked out.
In 2014, the total number of asylum-seekers in the EU reached its peak with 627,780 applications. However, 2015 is on track to break that record—Germany alone expects 800,000 migrants from Syria to cross its border this year.
While geography and politics are important factors in how nations have responded to the large number of migrants, the history and process of humanitarian admissions of the United States and European Union play a role. The following is a summary of the legal frameworks of the two humanitarian admission systems and explains the primary challenges to the European Union asylum processes that have been exacerbated by the recent migrant influx.
U.S. Humanitarian Admissions
The legal basis for humanitarian admissions to the United States began with the Refugee Act of 1980. It defines a refugee as a person outside his or her country of nationality and unable or unwilling to return due to “a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.” A refugee must apply while outside the United States and is referred to Resettlement Support Centers administered by the Bureau of Population, Refugees, and Migration at the Department of State. Referrals are made by the United Nations High Commissioner for Refugees (UNHCR) or a U.S. Embassy.
If admitted, the refugee will be provided assistance through the Office of Refugee Resettlement in the Department of Health and Human Services and is eligible to apply through U.S. Citizenship and Immigration Services (USCIS) for Legal Permanent Resident status after one year of physical presence in the United States.
The number of refugees that the United States will accept each year is set by the president in consultation with Congress. In recent years, the limit has been set at around 70,000 refugees, with a certain number allocated for each geographic region. In Fiscal Year (FY) 2012 the authorized ceiling for accepted refugees was 76,000, but it was decreased to 70,000 in FY 2013-2015. In FY 2014, the actual number of admitted refugees was 69,986.
When President Obama announced an increase for the next fiscal year in of the total of number of Syrian refugees to 10,000, some expressed concerns about whether such a change would increase the overall U.S. refugee cap or whether the admission of additional Syrians would replace refugees from other nations. While the president’s official FY 2016 Refugee Admissions Proposal has not yet been submitted to Congress, Secretary of State John Kerry announced on September 20, 2015 that the FY 2016 refugee cap would increase to 85,000 and the FY 2017 cap would go up to 100,000. The exact numbers of Syrian (and other) refugees admitted under these caps depends on the amount of funding Congress allocates for the security vetting and resettlement processes.
Although the Refugee Admission Program is an important component of U.S. humanitarian admissions, it is not the only method of obtaining legal status due to humanitarian concerns. In addition to refugees accepted overseas, the United States also accepts applications for asylum from individuals who are already in the United States, or are seeking admission at a port of entry. To be granted asylum, a migrant must still fit the legal definition of a refugee (a well-founded fear of persecution based on one of the protected characteristics).
While refugees petition through the Department of State, the asylum process is administered through the USCIS or through the immigration courts. Asylum can be sought through an affirmative or defensive process. In the affirmative asylum process, an asylum seeker voluntarily submits a petition to USCIS for asylum within one year of arriving in the United States and being admitted or paroled at a port of entry. Individuals undergo background checks and an interview before receiving a decision. Defensive asylum processing occurs when an individual has been apprehended in the United States or at the border and has been put in removal proceedings before an immigration judge. The individual can make their asylum claim to the immigration judge as a defense against removal, in which case the judge will make the asylum decision. If the petition is denied and no other form of relief is available, the individual will be deported from the United States.
EU Humanitarian Admissions
The legal basis for humanitarian relief in the European Union was established by the 1951 Geneva Convention, which defines a refugee as someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality” and unable to return. Although the definitions of refugee and asylee are almost identical to definitions used in the United States, there are some important differences in processing the applications.
In the European Union, the member states lack common rules governing humanitarian admissions. Out of the 28 EU member states, only fourteen have adopted annual refugee resettlement programs, generally using quota systems. All of these countries have partnered with UNHCR, which oversees the programs and assists countries with identification, reception and placement of new refugees. Although the EU adopted a joint resettlement program in 2012, the system works on a volunteer only basis. Since its adoption, the total number of EU countries with resettlement programs increased only by two member states. In 2014, the European countries (including EU non-members) together with UNHCR committed to resettle about 7,525 individuals, which compares to 6,468 refugees in the previous year.
The only common policy followed by the EU member states is the Dublin Regulation that allocates responsibility for the examination of asylum petitions. According to this regulation, which was enacted in 2003 and formally amended most recently in 2013, only one member state is responsible for examining an asylum application. The primary goal of this regulation is to “avoid asylum seekers from being sent from one country to another, and also to prevent abuse of the system by the submission of several applications for asylum by one person.” Under the regulation, which country has responsibility for the asylum request is determined by a set of criteria that places family unity as most important, followed by possession of a visa or residence permit in a member state.
Those migrants who do not have a family member with legal status or a visa in a European Union member state1 are required to file a claim for asylum in the member state they first enter when crossing the EU border. Therefore, the regulation has been consistently burdening Italy and Greece, two nations that provide a geographic gateway to the European Union for many migrants but are ill equipped to manage the influx of refugees. Germany has recently announced it will purposely disregard part of the Dublin Regulation and will allow Syrian refugees who enter through other EU nations to seek asylum on its territory. The agreement this month to redistribute 120,000 migrants is only temporary, and disagreements remain on how to effectively manage the high number of refugees that continue to seek humanitarian protection in the European Union going forward.
In 2014, the amount of asylum seekers in the European Union reached 627,780, the highest number of applications since 1998. In comparison with the previous year, the total jumped by 45 percent. The year with the lowest number of asylum applications was 2006, with 197,410 applications.
The recent sharp increase in EU asylum applications has been spurred by a sudden surge of Syrian migrants fleeing the ongoing civil war. Since the beginning of the conflict in 2011, the number of Syrians seeking safe haven in Europe jumped from 8,000 to over 122,000 applications in 2014.
However, due to differences between the member countries’ immigration laws, the European Union has been failing to process a large percentage of claims. Out of the 122,065 applicants, only 3,900 asylum seekers received a final decision in 2014. Even though fewer applications are processed, more Syrians are likely to receive asylum status. In 2011, only 45 percent of these final decisions were positive, four years later the member countries approved 74 percent of the processed claims.
1 The regulation also applies for countries of the European Free Trade Association (EFTA) outside the EU, such as Norway, Switzerland and Lichtenstein