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Mass Migration, Crimmigration and Defiance

The Case of the Humanitarian Corridor

In: Southeastern Europe
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The year 2015 saw an unprecedented number of refugees and migrants arriving to Europe through the “Western Balkans migration route”, where the states through which the route passed established the so-called “humanitarian corridor”. The operation of this corridor was outside the European normative framework and was treated by those states as a de facto undeclared “state of exception”. This situation, marked by an exceptionally intensive arrival of refugees and migrants en masse, was governed by ad hoc rules that were changing on a daily basis, creating an extremely unpredictable and uncertain situation for all stakeholders involved, in particular for the migrants and refugees themselves. This article discusses the crimmigration responses to mass migration management that are prevalent in contemporary law and politics, analyses the corridor within the current crimmigration context and demonstrates how the corridor defied the contemporary crimmigration approach to mass migration.

Abstract

The year 2015 saw an unprecedented number of refugees and migrants arriving to Europe through the “Western Balkans migration route”, where the states through which the route passed established the so-called “humanitarian corridor”. The operation of this corridor was outside the European normative framework and was treated by those states as a de facto undeclared “state of exception”. This situation, marked by an exceptionally intensive arrival of refugees and migrants en masse, was governed by ad hoc rules that were changing on a daily basis, creating an extremely unpredictable and uncertain situation for all stakeholders involved, in particular for the migrants and refugees themselves. This article discusses the crimmigration responses to mass migration management that are prevalent in contemporary law and politics, analyses the corridor within the current crimmigration context and demonstrates how the corridor defied the contemporary crimmigration approach to mass migration.

1 Introduction

In the contemporary world, borders are subject to progressive securitisation, surveillance and militarisation (Guild 2009; Franko Aas 2011: 332). Migration and asylum seeking are increasingly perceived as phenomena that cause security concerns, and therefore have to be addressed by way of control and punishment. Migration is not perceived as an element of normality that is as old as humanity itself, but rather as a threat posed by others to “our reality”, which is considered “normal”. This notion is used as justification for the criminalisation of migration by the introduction of ever-increasing amounts of punitive elements into administrative migration management systems, which categorise migrants and asylum seekers as inferior. Significant resources and state-of-the-art technologies are invested in the “fight against irregular migrants”, which include various “weapons of mass detection” (Broeders, Engbersen 2016: 1593). The European Union (eu) migration law is increasingly adopting penalising elements of criminal law, while simultaneously not applying the criminal law’s procedural guarantees (Legomsky in Chacón 2009: 136). This can already be seen in some of the eu migration law sources—e.g., the Return Directive 2008/115/ec and the Reception Conditions Directive 2003/9/ec (Majcher 2013: 3).1 Behaviours such as irregular migration or irregular stay, that were not considered unlawful in the past, are today considered offences in the majority of eu member states.

Deterrence, preclusion, detention and expulsion have become a prevalent policy response to migration (Broeders, Engbersen 2016: 1601; Leerkes, Broeders 2010: 830; Costello 2012: 288). To serve, among other aims, those of surveillance and expulsion, the eu member states established databases such as the Schengen Information System (sis ii), the Visa Information System (vis) and Eurodac (Broeders 2007: 71; Franko Aas 2011: 332, 334). The lines between administrative law approaches to migration management and crime-control policies are becoming increasingly blurred. As is the case in the us, the scholarly debate on this issue is evolving around three trends: harsh criminal consequences attached to violations of migration law; the use of expulsion following a judicial sentence in cases involving non-citizens; and reliance on law-enforcement actors and mechanisms in civil immigration proceedings (Chacón 2009: 135). The eu is clearly following suit.

This phenomenon, marked by merging the responses of criminal law with those of administrative law, leads to “crimmigration” (Stumpf 2006: 376), a response that has very little regard for the principle of the rule of law and the humanistic tradition of European nations.2 Such an approach indicates that we are dealing with a type of a “postmodern” politics that is leaving behind the constitutional guarantees and basic principles of international law, such as non-discrimination. The “crimmigrant” “othering” of migrants and refugees, along with their criminalisation and discrimination against them, has exceeded all constitutional and international law limits and has led to a situation that is legally, socially and politically unbearable.

Amid these policy and legislative trends, in 2015 and 2016, Southeastern European states experienced the transit of large numbers of migrants and asylum seekers through their territories. The phenomenon has been given a variety of different names, including the “Balkan route”, “mass migration route”, “the great march”, “humanitarian corridor” or simply the “corridor”.

Faced with extraordinary circumstances and entrenched in the “crimmigrant” approach to migration management, the states on the migration route shaped their responses on the “state of exception” principle, either formally by declaring a state of emergency,3 or factually by resorting to decrees or various measures that were outside of their legal orders; i.e., outside their normative framework (Šalamon 2016: 44). The corridor, combining a number of measures of deterrence, surveillance and limitation of movement of migrants and asylum seekers, had a clear crimmigration signature. In spite of this, as I will show in the continuation, the corridor’s obvious humanitarian purpose should not be overlooked.

In this article I first present the background facts, important in understanding how the corridor was shaped and developed in the context of Southeastern European states, with an emphasis on Slovenia, and then analyse it within the crimmigration context. Finally, I discuss the humanitarian aspects of the corridor, showing that the corridor itself also strongly defied the “crimmigrant” approach to mass migration management in the European Union.

2 Legal Background

Southeastern Europe is a region which includes countries that are eu member states (Slovenia, Croatia, Greece, Romania, and Bulgaria) and candidate or prospective candidate countries for membership (Bosnia and Herzegovina, Serbia, Montenegro, Kosovo, Macedonia, Albania, and Turkey). Both groups of countries have harmonised or are in the process of harmonising their national legal systems with the eu rules on border control, asylum and return (Celador and Juncos 2012: 202). In some aspects, this process introduced prospects for obtaining asylum and secured higher procedural standards for persons involved in migration and asylum procedures,4 yet it simultaneously also facilitated the introduction of a number of crimmigration elements that had not existed in these countries before (setting up of new detention centres, carrying out of return procedures/deportations, penalisation of migrants for irregular entry and stay, etc.).

The impact of harmonisation is therefore twofold: on the one hand, it is bringing opportunities to the citizens of these countries, who are or will be able to enjoy the benefits of eu membership (all these countries are and will continue to be net recipients of eu funds). On the other hand it is making it more difficult for migrants who might be interested in staying in these countries (due to stricter rules on entry and return), or migrants who are interested in transiting through Southeastern Europe in order to reach Northern or Western Europe (due to stricter border control as well as the migrant identification and registration obligations of these countries) to do so.

All Southeastern European countries now contribute to problems such as confinement of irregular migrants (without criminal records) in immigration detention centres, lack of alternatives to detention, penalisation of irregular border crossing, either as a crime or a misdemeanour, and disproportionate representation of migrants in prisons. They all have immigration laws that impose border control, provide for deportations and limit entry of unauthorised individuals. In all these countries, the conditions are similar to those defined in the Schengen Borders Code, which in Article 5.1 defines the requirements to be granted the right to enter, such as possession of a travel document, a valid visa, a residence permit or similar documentation. These countries also have asylum laws, according to which they must receive the asylum applications of persons who express the need for international protection and exempt asylum seekers from punishment for irregular entry (but not, for example, for possession of the forged documents used for entry). None of these laws provide for the right of transit for migrants and asylum seekers.

2.1 Relevant Provisions of the Schengen Borders Code

What are the rules governing transit and entry of irregular migrants? In the eu legislation, entry is allowed only for persons who meet certain conditions. Transit is only mentioned in the context of airport transit zones (see Article 2.1.3 of Annex vi to the Schengen Borders Code), or in the context of allowing persons who have a residence permit or a visa in one of the eu member states to cross the territories of other member states in order to reach their country of residence permit (Article 5(4)(a) of the Schengen Borders Code). All Southeastern European states have very similar provisions in their legislation.

From these rules themselves, it is apparent that they were created for individuals, small groups or continuous border traffic, but not for large humanitarian situations or extraordinary circumstances that would entail masses of people crossing borders.

In the eu legislation, extraordinary circumstances are addressed twice: first, they are mentioned in Article 5.2(b) of the Schengen Borders Code, which defines the manner of crossing of external borders. According to paragraph 1 of this provision, external borders may be crossed only at border crossing points and during fixed opening hours. There are certain exceptions to the obligation of crossing external borders only at border crossing points and during fixed opening hours. One such exception includes the possibility of exemption from this rule for “individuals or groups of persons in the event of an unforeseen emergency situation” (paragraph 2). But note should be taken that this possibility exists only for exemption from the rule regarding the place and time of the crossing, but not from the conditions that have to be met for the crossing to be allowed.

The second example where extraordinary circumstances are mentioned is Article 9 of the Schengen Borders Code, which defines relaxation of border checks. The first part of this article states that border checks at external borders may be relaxed as a result of “exceptional and unforeseen circumstances”, caused by “unforeseeable events that lead to traffic of such intensity that the waiting time at the border crossing point becomes excessive”, so that all personnel, organisational and facility-related resources of border control authorities are exhausted.

The provision goes on to define the conditions under which border checks have to take place, even when they are relaxed, while the last part of the provision removes any doubt as to what relaxed border control may look like. Namely, “even in the event that checks are relaxed, the border guard shall stamp the travel documents of third-country nationals both on entry and exit” (Article 9.3 of the Schengen Borders Code). This indicates that relaxation does not mean the authorities may disregard the entry conditions that people need to meet; hence, the provision was not meant to apply to irregular mass migration movements.

Lastly, a relevant provision that should not be overlooked is an exemption from the conditions for entry specified in Article 6.5(c) of the 2016 Schengen Borders Code, which enables a member state to authorise entry to third-country nationals who do not fulfil one or more of the conditions for entry in line with the Schengen Borders Code on humanitarian grounds, on grounds of national interest or because of international obligations. The question therefore is whether authorising entry within the corridor has a legal basis in this provision. What should be taken into account is that in order to implement this exemption, the Visa Code foresees issuing humanitarian visas. In the Schengen Borders Code there are no further provisions that would allow entry or transit in the event of mass arrivals of refugees.

2.2 Determining Responsibility for Examining Asylum Claims

In a case where a person wishes to apply for international protection, asylum legislation should be applied. The refugee status determination procedures in the eu have to be in line with the Asylum Procedures Directive 2013/32/eu, while the state responsible for the examination of asylum application is determined in accordance with Dublin Regulation 604/2013. Neither of these two legal documents provide for the possibility of transit of persons who enter one eu member state but intend to apply for asylum in another.

On the contrary, according to the law it is required that a person who wishes to apply for asylum do so in the first country where he or she enters the eu, or as evident from practice, in the first country where he or she either reports to or is apprehended by the authorities.

Once they do so, their fingerprints are entered into the Eurodac system, according to Article 9 of the Eurodac Regulation 603/2013. According to Article 14 of the Eurodac Regulation, fingerprints are also taken from persons who do not apply for asylum, but are apprehended at their irregular entry from third countries. Logically, this provision only applies to eu member states and eu external borders, as well as to seaports or airports in all member states. In such cases, the responsibility of the member state to examine the asylum application ceases after twelve months (Article 13.1 of the Dublin Regulation). These provisions are relevant as the countries in the corridor were required to fingerprint people entering irregularly. The data acquired were later relevant for Dublin returns of people who travelled within the corridor.

2.3 Detention of Migrants on the European Level

Specific rules apply to detention of migrants on both the European and national level. These rules are relevant in the context of the mass limitation of movement that took place within the corridor and amounted to detention. At the European level, two legal documents are relevant for the measure of detention. The first is the eu Return Directive 2008/115/ec, which is the only eu document governing detention of irregular migrants who did not apply for asylum. This directive in Article 15(1) allows member states to impose detention, but only for the purposes of carrying out the return (deportation, expulsion) of the person. The purpose of return is therefore a necessary condition for this measure to be valid.

The same is true for Article 5.1.F of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides only two sets of circumstances under which detention of irregular migrants is allowed: it must be done either for the purpose of return (the same as in the case of the return directive) or in order to prevent unauthorised entry.

The eu legal basis for detention of those migrants and refugees who applied for asylum is the reception conditions directive, which specifies conditions and circumstances under which an asylum seeker’s freedom of movement may be limited. Since, until reaching Austria, almost none of the migrants and refugees applied for asylum and could therefore not be formally considered asylum seekers, this legislation was irrelevant for them.

2.4 Detention of Migrants on the National Level: The Case of Slovenia

National legislations also contain strict limitations as to when anyone, including migrants, may be detained. For example, in line with the national law of the Republic of Slovenia, migrants without a regulated legal status may be detained in the Aliens Centre under the conditions specified in the Aliens Act, based on a detention decision issued by the police. This decision may be appealed at the Administrative Court and is subject to judicial review.

Limitation of the movement of migrants is also allowed within the framework of border control, where the police have the right to restrict one’s freedom of movement for 48 hours. If the restriction of movement lasts for six hours or longer, the detained person has to be issued a written decision specifying the reasons for this measure (Article 3 of the State Border Control Act of the Republic of Slovenia).

In order to limit one’s freedom of movement, the police may also use their power to temporarily restrain freedom of movement of persons in the vicinity of a certain object if it is deemed “necessary in order to protect certain persons, places, buildings or areas” until a police task is completed (Article 5(4)(3) of the Police Tasks and Powers Act). This power is so broad that it can be applied to practically any situation, and should therefore be given a narrow interpretation.

3 Factual Background

3.1 Formation of the Corridor

The mass arrival of migrants and refugees that Europe witnessed between July 2015 and April 2016 took place within the described normative framework. The rules did not foresee such events and contained no mechanisms that would provide for an effective crimmigrant or non-crimmigrant response. While the number of arrivals increased steadily throughout the first half of 2015 (Frontex 2015a and 2015b), the breaking moment leading to the establishment of a humanitarian corridor was when, on one end, Hungary prevented refugees and migrants from leaving the Keleti train station in Budapest in September 2015 by cancelling all trains towards Austria and Germany (Guardian 2015), while at the other end, refugees and migrants decided to take the route, encouraged by the large number of refugees who had already managed to reach Europe (Frontex 2015c).

From October 2015 to March 2016, the corridor went through Greece, Macedonia, Serbia, Croatia, Slovenia, Austria and Germany. From there, some people continued their journeys to various destinations, including Sweden, Finland, Norway, France and Switzerland. The point of formation of the corridor was a decision made by Germany on 24 August 2015 to suspend the application of the Dublin Regulation for Syrian refugees (Asylum Information Database 2015). On 17 October 2015, following Hungary’s complete closure of its borders first with Serbia and then Croatia, the corridor finally moved south entirely and continued through Slovenia towards Austria and finally Germany, which was the preferred country of destination for a large majority of all migrants and refugees (Ladić and Vučko 2016: 17). From that moment, the states on the migration route one by one began to participate actively in the facilitation of the corridor by provision of transport, basic care and medical assistance (Ladić and Vučko 2016: 17).

Corridor management contained a number of crimmigration elements. People were under constant surveillance. The corridor was managed fully by the police (including special police forces in riot gear) and military (fully armed). The regimes in the ad hoc registration centres set up along the route were prison-like—fenced, with meals provided only at certain times and with restricted movement and restricted access by unauthorised persons, including ngos and the unhcr. Crowd control mechanisms were used in cases of riots, fights or disruptions (Peace Institute 2016a, 2016b, 2016c).

People travelling within the corridor did not intend to apply for asylum in the first eu member state they entered (e.g., Greece), but in most cases intended to do so in Germany or, for some, in other western or northern eu member states. Their intention was to enter each country on the route and transit it in order to enter the next one, with an aim to reach their preferred country of destination. Austria was the first country on this migration route that was not only considered a transit country, but also as a final country of destination for some people.

3.2 Humanitarian Conditions within the Corridor

For all states on the route (but also for civil society and humanitarian organisations) the facilitation of the corridor required the use of all available staff, facilities and organisational capacities (cf. Ladić and Vučko 2016; Frébutte 2016). Provision of reception conditions was often subject to prior registration, indicating the desire to exercise control over individuals’ basic needs. The basic care provided was minimised in order to carry out a punishment of those who entered and deter new arrivals. The numbers of migrants and refugees were at times so high that the situations were on the verge of humanitarian disaster and potentially even violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits torture and inhuman or degrading treatment. Appalling conditions and overcrowding in various ad hoc registration and reception centres and the lack of preparedness for mass arrivals on the part of the authorities raised serious concerns as to whether people could withstand the strenuous conditions they faced on the route.

Some countries on the route operated the corridors in such a way that migrants and refugees were free to choose among various means of transportation available to them and move around the country freely (e.g., Macedonia and Serbia), while others required the migrants to use the means of transportation provided for them and, when not on the move, held them in confined camp areas surrounded by fences (e.g. Croatia and Slovenia).5 This also contributed to surveillance, control and punishment as the main aims of crimmigration.

3.3 The Effects on eu-Turkey Agreement on the Corridor

The corridor was in full operation until 8 March 2016, when the eu-Turkey agreement was concluded (eu Turkey Statement). It then began to be scaled down, until a few weeks later, when it completely vanished as the final groups of migrants and refugees still on the route applied for asylum in one of the countries on the route. While the corridor temporarily neutralised the crimmigrant rules governing migration management, the eu-Turkey agreement reinstated them.

Even while the agreement was being negotiated, the circumstances within the corridor and the nature of the enterprise were changing rapidly on a daily basis. In the period from January 2016 onwards, it was becoming increasingly difficult for certain categories of migrants and refugees to continue their journey to the next country on the route, even though only a few weeks earlier this had been possible for their co-nationals (Peace Institute 2016a, 2016b, 2016c; Centre for Peace Studies 2016).

The reinstitution of the crimmigrant approach first affected only certain groups. Nationals of countries other than Syria, Iraq and Afghanistan (sia nationals)—for example, Moroccans, Egyptians, Tunisians, Eritreans, etc. (non-sia nationals)—were increasingly subjected to less favourable treatment and were not allowed to continue their journey within the corridor (Peace Institute 2016a, 2016b, 2016c; Centre for Peace Studies 2016). Those sia nationals who did not have appropriate papers issued by the states within the corridor were at some points also not allowed to continue their travel (Peace Institute 2016a, 2016b, 2016c; Centre for Peace Studies 2016).

As the corridor narrowed and the open door policy of Germany started to wind down, the countries further south on the migration route, following a “domino effect”, also started not only restricting their actual entry policies, returning fully to the restrictive elements of the legal framework, but also limiting access to the asylum procedure for the remaining persons within the corridor.6 Deterrence and expulsion as the main goals of crimmigration policies prevailed once again. They were accompanied by further militarisation of border control which occurred by, for example, employing military forces to guard the borders in Bulgaria, Serbia, Macedonia and Hungary (Reuters 2016a; 2016b; 2016c). Also, by adopting legislative amendments, Slovenia extended its police force’s powers to its army in the area of border control (Republic of Slovenia, Amendments to Defense Act, 21 October 2015).

4 Applying the Law and the “Crimmigrant” Response

4.1 Entry and Transit

The aim of this section is to show if and how the valid legal provisions were applied while the corridor was in place. The described developments first show that the entire state management of the corridor was not in line with immigration, border control and asylum rules and was therefore outside the normal normative framework. Extraordinary circumstances led the governments involved to deploy extraordinary measures, and since these were unforeseen by law, they in fact amounted to a state of exception.

The state of exception situation was shaped by a number of states’ unilateral measures, decrees issued by governments and de facto practices applied by the authorities, the police, and the army in their daily response to mass arrivals. This was an example of a “disorganised state of exception”, far from the permanent state of exception that one can observe, for example, with regards to the Guantánamo detention camp, which continuously and permanently functions outside of the rule of law. Instead, the corridor was a chaotic and unpredictable set of measures and responses that came into existence as a result of improvisation on the part of state authorities in addressing this extraordinary migrant situation.

As we have learned from the described and analysed legal framework, from the formalistic perspective of national and eu law, the entire enterprise surrounding the corridor was unlawful. Namely, in spite of not meeting the conditions for entry, thousands of people were granted entry in all countries on the migration route. It would also be difficult to formally justify their entry on the basis of humanitarian reasons mentioned in the Schengen Borders Code, as humanitarian visas would have to be issued for this purpose in line with the Visa Code. Furthermore, people were allowed transit through countries in order to enter the next country on the route, even though such an option is not provided for in the law, as mentioned above.

By taking such an approach, the governments’ response was less crimmigrant than it would have been had the corridor not existed. Complete prohibition of entry and transit as instructed by the legislation were replaced by states facilitating entry and transit of an unprecedented number of migrants and refugees.

4.2 Limitation of Movement Practices

In spite of these anti-crimmigrant developments certain important crimmigration elements persisted. In some countries on the route, freedom of movement in and out of the corridor was prohibited, which means that people were de facto detained. For example, once people reached the Croatian registration camp at Opatovac (later replaced by the camp in Slavonski Brod), they were constantly subject to police supervision (cf. Supreme Court of the Republic of Slovenia 2016) and not allowed to move around freely, as the camps were fenced. Then the authorities provided trains to transport them to the Croatian-Slovenian border. The trains were locked until the decision was made by the authorities to release the migrants and first direct them towards the Slovenian border, or later, after an agreement had been reached with the Slovenian authorities, to deliver them directly to the Slovenian authorities at the Dobova train station (Human Rights Ombudsman 2016).

Slovenia continued this practice, as all registration camps provided for this purpose (Brežice and Dobova near the border with Croatia, or Šentilj near the border with Austria) were fenced and highly guarded. Transport was provided by buses or locked trains. These arrangements made it impossible for people to leave the camps even for a short while or to choose their own means of transportation.

Such limitation of movement undoubtedly interfered with individual personal freedom. To avoid such situations, all interferences of the authorities with this right should be in line with the legal guarantees set forth by the constitution, as well as with international, European and national law. Taking into account the analysis in this paper’s section on the legal background of the corridor, I conclude that limitation of movement of persons in the corridor was unlawful. No legal provisions exist that would allow for such mass, indiscriminate and general limitation of movement.

4.3 Limitation of Movement: The Case of Slovenia

In Slovenia, individuals whose freedom of movement was limited did not receive any decisions imposing this measure on them within six hours of the beginning of the implementation of the measure, as required by the State Border Control Act, or later as required by the Aliens Act. On the contrary, since Austria expected that each person they received from Slovenia had been duly registered, the Slovenian authorities decided to issue a document called “permission to remain” (Slovenian: dovoljenje za zadrževanje) based on Article 73 of the Aliens Act. The permission to remain was an administrative document which served as proof for Austrian police that an individual was duly registered by the Slovenian authorities. It is also one of those administrative elements that characterise crimmigration as a mixture of administrative and crime control mechanisms. As permissions to remain were later also used as a basis for Dublin returns, and since Dublin returns can also been seen as a type of expulsion penalising migrants for continuing their travel within the eu, it can be argued that such an administrative measure simultaneously served the penalising aim of crimmigration.

This permission to remain, which is usually valid for six months, does not provide for the right to reside in the country, but enables a person to stay and be protected from deportation. The document is intended for individuals whose return cannot be carried out and who do not have a residence permit in Slovenia. It is a type of document that provides for some kind of legalisation, yet not to the extent that it would be considered a residence permit. However, it is clear that the issuing of permissions to remain was not based on the fact that people in the corridor could not be returned, but that these permissions were instead issued because the Slovenian authorities wanted to be sure that these persons would be properly registered and accepted by Austria.7 Return was not even attempted anymore, as after the first days, when the corridor started going through Slovenia, the Croatian authorities did not respond to return requests issued by the Slovenian police. So the permissions to remain were issued contrary to their legal purpose.

The only provision that could legally justify the limitation of movement is the aforementioned general police power from the Police Tasks and Powers Act, but as already underlined, this authority is so broad that it should have been interpreted and used restrictively. Instead, in the case of the corridor, it was used for hundreds of thousands of people and over the duration of several hours or days in relation to each refugee, and for more than seven months in total.

There was no intent to return the people in the corridor, while the main purpose of limitation of movement was to exercise control and to make sure that refugees and migrants left the country and were received by Austria. Arguably, it is also safe to conclude that the limitation of movement was not in line with the conditions of the Return Directive and the directives of the European Convention on Human Rights, as its main purpose was not to carry out the return or to prevent unauthorised entry, as required by the Convention. The entry of the people into the country was definitely not in accordance with the law, but it was also not unauthorised; the state authorities de facto had authorised it by carrying out registration and providing basic care and transport.8

5 Legal Consequences of the Facilitation of the Corridor

5.1 Reference for Preliminary Ruling to the cjeu: Irregular Entry?

From the analysis of the compliance of the state practices developed within the corridor with the normative framework, it is evident that the whole situation amounted to a disorganised state of exception, legal chaos from a formalistic point of view, a parallel regime (Šalamon 2016a: 44) established in practice in disregard of the law. This parallel regime now already has consequences in judicial activity, predominantly in Austria and Slovenia.

One of the issues mentioned above that the national courts started to address is the question of whether a person’s entry into the country through the corridor was irregular. This issue was raised by the Supreme Court of the Republic of Slovenia in a reference for a preliminary ruling to the Court of Justice of the European Union (cjeu) in line with Article 267 of the Treaty on the Functioning of the European Union.9

The case concerns A.S., a national of Syria, who travelled to Slovenia through the corridor by organised means. He exited Serbia and entered Croatia at a designated border crossing, accompanied by Serbian authorities, and was handed over to Croatian authorities, who did not deny his entry to Croatia and did not initiate any procedure for return from Croatia or verify if he met the conditions for lawful entry. Furthermore, the Croatian authorities then also organised his transport to Slovenia (par. 5 from the reference for preliminary ruling). In Slovenia, he applied for asylum.

However, the Slovenian Ministry of the Interior, competent for examining asylum applications, dismissed his application and decided that according to the Dublin Regulation, Croatia was the member state responsible for examining his asylum request. It is difficult to overlook the absurdity of the situation, in which the state authorities had first rushed people through and then tried to use legal ways to return them to where they entered from. Surprisingly, following Slovenia’s request, Croatia accepted its responsibility, invoking Article 13(1) from the Dublin Regulation, which specifies the responsibility of the state into which an asylum seeker entered irregularly from a third country.

In its reasoning for the reference for preliminary ruling, the Slovenian Supreme Court expressed doubts as to whether such entry was really irregular if it was in fact authorised; however, the court was not convinced regarding whether such an autonomous interpretation of Article 13(1) of the Dublin Regulation is allowed, or whether each national court understands irregular entry as one not in line with the Schengen Borders Code.10 In other words, the Supreme Court was investigating whether the activities of the border authorities who accompanied people across the border and disregarded the entry rules should be taken into account in a discussion regarding whether a particular border crossing was irregular.

The Supreme Court also raised the question of the differences in terminology in various legal acts. For example, while the Dublin Regulation uses the term “irregular crossing” (Slovenian: nepravilen), the translation of the Slovenian text uses the word “illegal” (Slovenian: nezakonit). While the eu, as all other international organisations, started avoiding the use of the term “illegal” in the context of migration to avoid contributing to crimmigration, the Slovenian authorities (and also Slovenian translations of relevant legal acts) still predominantly use the term “illegal” (Slovenian: nezakonit) or “unauthorised” (Slovenian: nedovoljen). For the court, this was an additional argument for doubting that the manner in which the crossing took place could be examined only from the perspective of formal entry requirements as specified by law.

As the case for preliminary ruling is pending, one can only speculate as to what the outcome will be. If the cjeu responds to this main question affirmatively—i.e. that the term “irregular” should be interpreted autonomously and that the state authorities’ factual activities should also be taken into account in addition to formal legal provisions—this will effectively prevent returns on the basis of the Dublin Regulation for persons who applied for asylum in Austria, Germany or other Western and Northern European member states, even though they entered the eu first in Greece and then in Croatia. According to the official statistics, the number of these persons is at least 650,000 (European Commission 2015).

If the response of the cjeu is negative—i.e. that only formal requirements specified in the Schengen Borders Code should be taken into account when interpreting whether a border crossing was irregular—this would effectively mean that Croatia would be faced with hundreds of thousands of requests to accept responsibility for examining these individuals’ asylum requests. This would probably put Croatia in the same position as Greece was before 2011, until Dublin returns were stopped based on the European Court of Human Rights’ judgment in the case M.S.S. v. Belgium and Greece (echr 2011).

5.2 Austria: Judicial Responses to Arbitrariness within the Corridor

Other examples of judicial activities on the national level include the recent first instances of judgments issued by Austrian courts in relation to persons who were returned from Austria to Slovenia when the corridor was already closing down, and were consequently not allowed to submit asylum applications in Austria. With the assistance of an Austrian non-governmental organisation named Bordercross Spielfeld, an Austrian attorney initiated 25 cases by filing complaints against such treatment. In seven cases (as of October 2016) the appeals were successful; in four they were unsuccessful, and others are still pending. In the four unsuccessful appeals, further judicial review was sought from the Austrian Supreme Administrative Court.11

In one of the successful appeals, the Austrian first instance court confirmed that the applicant, now based in Slovenia, where he had submitted an asylum application (this is the same applicant as in the reference for preliminary ruling lodged by the Slovenian Supreme Court), was not given the chance to apply for asylum in Austria because the interpreter told the Austrian police officer that the applicant is from a region in Syria where there is no war. In several other cases, the Austrian court reached a similar decision.12 In these cases, the right to re-enter Austria is now being sought by the individuals concerned.

Another case involved an applicant who wanted to transit Austria in order to apply for asylum in Germany, but had his request refused. The conclusion reached by the Austrian first instance court was that such treatment was discriminatory, as such opportunities had been provided for thousands of other individuals. In this case, the re-entry right is questionable because it concerned entry into Germany and not Austria.

The successful cases indicate that when interpreting the lawfulness of the border procedures applied in the corridor, the Austrian Administrative Court took into account the wider context, including the state practices used while managing the corridor, and did not resort to a solely formalistic approach. It therefore interpreted the procedures autonomously, disregarding the definition of irregular entry from the Schengen Borders Code or the Return directive. Only in this way could the court also apply more general constitutional principles of the rule of law and equality, which are equally binding in judicial decision-making.

The Austrian Administrative Court approach can accordingly also be regarded as counter-crimmigrant, by way of its use of an approach that did not punish the asylum seekers for taking the unique opportunity to travel to their country of destination within the corridor.

5.3 Reference for Preliminary Ruling to the cjeu: Authorised Entry as a Humanitarian Visa?

Following the appeals that were lodged in the four unsuccessful cases, the Austrian Administrative High Court effectively halted all Dublin procedures (i.e., procedures for return to countries where asylum seekers irregularly first entered eu territory, such as Croatia or possibly Greece) and addressed another reference for preliminary ruling to the cjeu, asking whether authorising entry should be regarded as a visa.13 It also ordered the lower administrative court to investigate how the entry or transit through Croatia took place and if the circumstances were identical to those of the case of A.S., in which the Slovenian Supreme Court filed a reference for preliminary ruling to the cjeu.

The decision of the cjeu must be awaited before the responsibility of the state can be determined.14 Arguably, Austria will apparently not continue with return procedures based on the Dublin Regulation in the cases of persons who entered Austria through the “humanitarian corridor” until the cjeu’s decision is reached.

6 The Corridor as Means of Countering Crimmigration

The legal questions raised by these courts all point to a more general issue regarding the legitimacy of the corridor: if the state facilitated the operation of the corridor in a way that was incompatible with national and eu laws, could the corridor still be considered as a legitimate operation from the perspective of human rights law and the principle of human dignity?

Let us imagine for a moment what would have happened if the corridor had not been allowed, and if the eu norms and national rules had been strictly respected by some of the states on the route.

If one of the states, for example Slovenia, had not allowed entry, refugees and migrants would be stranded in Croatia at the border with Slovenia in increasingly crowded conditions. The crowd could grow large enough that police would have to use various forceful methods to prevent entries, which could have led to conflicts similar to those at the Greek and Macedonian border, and thus inevitably to physical injury for both refugees and the police. If the border had been “secured” by a panel fence, this would not bring any significant change as the refugees would try to cross anyway by destroying the fence, as we have observed in Hungary. If the border had been “secured” by a razor-wired fence (as some parts already are), people would be at extremely high risk of physical injury and consequently damage to their physical integrity.

Furthermore, if the refugees did not exercise physical pressure to enter, they would have started camping at the border site, which would have led to difficult humanitarian situations, sanitary problems and hardship due to lack of basic care (food, clothes, shelter and medicine). One needs to remember that thousands of people per day travelled through this corridor and, with all the alternative scenarios at their disposal being less desirable, allowing entry was the only thing states could do to respect basic human rights standards. Of particular concern would be situations falling under Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (echr), which prohibits inhuman and degrading treatment.

If people were refused entry while the neighbouring country was refusing to accept them back, those people would be stranded in the territory between the two states. If neither of the two states accepted the responsibility to provide for basic care, they could both be found liable for violating Article 3 of the echr.

This shows that mass arrivals change everything. The described scenarios indicate that the alternatives to the corridor are not acceptable ones and would in fact lead to far more difficult humanitarian and human rights situations compared to those observed within the corridor.

Had there been no corridor and had people been left stranded at the border, the main aim of the authorities would have been to encourage them to surrender, leave the site, disperse or return. This was evident from the case of Idomeni, the improvised camp at the Greek-Macedonian border after the closure of the corridor.

7 Conclusions

Clearly, not allowing entry and disregarding basic human rights standards would have been a straightforward crimmigrant approach to “migration management” that would have caused additional dehumanisation, suffering and possibly even loss of human life. In contrast, it is evident that the corridor, with the facilitated entry and transit supported by the states involved, provided for a very different pathway for the people to reach their preferred countries of destination.

The corridor provided for much faster travel. Using the corridor, people needed only a few days rather than the weeks or months or even years that they would have needed if states had not been involved.15 Furthermore, the corridor provided much cheaper travel for migrants and refugees, since starting at the Greek and Macedonian border they no longer had to pay human smugglers to transfer them from one country to another. The states themselves took over work that before the corridor had been exclusively in the hands of smugglers, and that returned to them after it had closed down. Finally, the corridor provided for a much safer journey for migrants and refugees. The death toll for those using the corridor was practically non-existent (with the exception of boat journeys from Turkey to Greece), which is of immense importance when considering that one out of 23 migrants did not survive their journey through the Central Mediterranean route in 2016. These three elements—speed, costs and safety—also show that the corridor was a preferred option for the migrants, and that with its closure their vulnerability has increased.

The corridor therefore clearly had a strong humanitarian character and, even though a mixture of administrative and criminal law responses and policies were apparent while it was in operation (cf. Stumpf 2015: 240), for those six months it successfully defied the crimmigrant response that is otherwise prevalent in law and official policies. This is a particularly valuable point, as countries that host migrants, even if only for short periods of time, generally adopt tougher measures to address the irregularity of migrants present in their territories (Guia 2013: 21; Mitsilegas 2013: 88).

The competence of the eu in the field of asylum and migration is hampered by the individual interests of member states. While some are reluctant to participate in distribution processes and receive asylum seekers (the Višegrad group), others are passive due to upcoming elections (Germany, France) in which the issue of migration plays a crucial role. The eu-Turkey agreement seems to be functioning as a one-way deal. While the section on return of migrants and refugees from Greece to Turkey is being implemented, very few people have been welcomed to Europe in return based on this agreement. Consequently, mechanisms providing safe pathways such as resettlement, relocation and humanitarian visas have not yet been used to their full potential. Furthermore, by lacking a common eu approach, countries have adopted—and will very likely continue to adopt—unilateral deterring measures for blocking access to their territories to all persons, regardless of their protection needs. It is expected that other countries in Southeastern Europe will follow the examples of Austria, Slovenia, Hungary and Bulgaria in their crimmigrant approach. The eu, with its plans to externalise border control, not only to Turkey but now also to Libya, is not setting an encouraging example for a more protection-centred approach. In this situation the corridor showed how alternatives to crimmigration policies are greatly needed in times of mass displacement when so many people are seeking refuge or opportunities for a better life.

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1

An increased use of humanitarian and human rights language in migration management systems (Aas and Gundhus 2015: 5) should not conceal its real goals of deterring, surveillance and penalisation of migrants and protection of external borders. This is also noticeable from the actual work of institutions such as Frontex, since in the documents it produces humanitarianism cannot be found. Frontex does not mention its human rights and humanitarian work in its annual reports, but focuses on securitising borders and counting irregular entries to the eu (Frontex 2016).

2

It is widely accepted that crimmigration has reached its widest scope in the u.s. Even the United Kingdom’s polices, in spite of the fact that the u.k.’s deportation procedures are the most effective, are assessed as less crimmigrant than those in the u.s. (Cf. Ashworth and Zedner 2014: 235; Stumpf 2013: 246).

3

Macedonia declared a state of emergency in August 2015 (bbca 2015), and Hungary declared a state of emergency in September 2015 (bbcb 2015).

4

For the role of the eu in the process of establishing asylum institutions in the Western Balkans see Šalamon 2016b.

5

For a detailed description of the response of the Republic of Slovenia to mass arrivals and the transit of migrants and refugees and how these responses developed, please see Ladić and Vučko 2016.

6

The trend of closing the doors for asylum seekers was continued by countries further restricting their asylum legislation. Hungary, for example, limited the number of daily arrivals (Republic of Hungary, Amendments to the Asylum Act of 5 July 2016) while Austria and Slovenia passed emergency laws that enabled their authorities to close the borders for asylum seekers unless they fell into extremely narrowly defined groups, e.g. unaccompanied minors (Republic of Austria, amendments to the Aliens Act, 28 April 2016; Republic of Slovenia, amendments to the Aliens Act, 26 January 2017).

7

It is interesting to note that on 7 January 2016, the Government of Slovenia declared that permissions to remain issued to refugees cannot be regarded as residence permits in line with Article 12 of the Dublin Regulation, thereby trying to disclaim its responsibility for examining asylum applications lodged in other eu member states (Government of the Republic of Slovenia, 2016).

8

It is important to emphasise that the states applied the described treatment only to refugees and migrants who found themselves within the “corridor”, while any other foreigner trying to enter irregularly outside the corridor was not allowed to do so. In such cases, the eu rules were strictly applied.

9

Case L-2925, A.S., Request for preliminary reference lodged by the Supreme Court of the Republic of Slovenia, 13 September 2016 (national case number: I Up 220/2016-11).

10

The full translation of the questions asked by the Supreme Court of the Republic of Slovenia in the reference for preliminary ruling to the cjeu, L-2925 of 13 September 2016, is:

“1. May judicial review in accordance with Article 27 of the Regulation No. 604/2013 be requested also with regards to the interpretation of conditions from Article 13(1), when the member state decides that it will not examine the application for international protection, while another member state already accepted responsibility for the examination of the applicant’s request on the same legal basis, when the applicant opposes this?

2. Should the condition of irregular entry from Article 13(1) of the Regulation no. 604/2013 be interpreted independently and autonomously, or should it be interpreted in line with point 2 of Article 3 of Return Directive 2008/115 and with Article 5 of the Schengen Borders Code that defines unlawful border crossing, and should such an interpretation be taken into account in interpreting Article 13(1) of Regulation 604/2013?

3. Following the response to question No. 2, should the term "irregular crossing" from Article 13(1) of Regulation 604/2013 in the circumstances of this case be interpreted in such way that this border crossing was not irregular when the member state authorities organised such crossing with the purpose of transit to another eu Member State?

4. If the answer to question 3 is affirmative, should consequently Article 13(1) of Regulation No. 604/2013 be interpreted so as to prevent the return of a third-country national to the state where he first entered the eu?

5. Should Article 27 of the Regulation No. 604/2013 be interpreted so the time limits from Articles 13(1) and 29(2) are not being taken into account while the applicant exercises his right to judicial review, in particular when this right involves a request for preliminary ruling or when the national court is waiting for the response of the Court of Justice of the eu to the request in another case? Alternatively, would in such a case the time limits be taken into account, while the responsible Member State would not have the right to reject the acceptance of the case?" (translated by the author).

11

See cases of the Austrian Administrative Court, judgments no. LVwG 20.3-913/2016 and LVwG 21.3-914/2016 of 29 August 2016; LVwG 20.3-864/2016 and LVwG 21.3-865/2016 of 29 August 2016.

12

See cases of the Austrian Administrative Court, judgments no. LVwG 20.3-912/2016 of 9 September 2016, LVwG 20.3-918/2016 and 21.3-919/2016 of 9 September 2016, LVwG 20.3-873/2016 and LVwG 21.3-874/2016 of 9 September 2016.

13

Austria, Verwaltungsgerichtshof (Administrative High Court), Reference for preliminary ruling to cjeu, C-646/16 Jafari, 14 December 2016.

14

Austria, Verwaltungsgerichtshof (Administrative High Court), Ra 2016/18/0172 to 0177 of 16 November 2016.

15

If migrants and refugees run out of savings to cover the expenses of their journey, they need to engage in the grey economy in order to earn money and pay for the continuation of their journey. There are numerous testimonies available online showing that sometimes people live in forests and “jungles” (unofficial border camping sites or abandoned buildings) for years before they manage to continue their journey. During this time, it is clear that they have to find ways to provide for themselves.

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