New Regionalism and Asylum Seekers: Challenges Ahead [1 ed.] 1845453441, 9781845453442

Table of contents :
Contents
List of Tables
List of Contributors
Acknowledgements
Introduction: Regionalism as a Response to a Global Challenge • Susan Kneebone and Felicity Rawlings-Sanaei
1 The Migration–Asylum Nexus and Regional Approaches • Stephen Castles
2 Strategies, Stories and Smuggling: Inter-regional Asylum Flows and Their Implications for Regional Responses • Khalid Koser
3 Forced Migration, Engineered Regionalism and Justice between States • Matthew J. Gibney
4 The Europeanization of Refugee Policy • Joanne van Selm
5 Europeanization of Citizenship and Asylum Policy: a Case Study of the U.K. • Nazila Ghanea
6 North American Responses: a Comparative Study of U.S. and Canadian Refugee Policy • François Crepéau and Stephen H. Legomsky
7 Australia, Indonesia and the Pacific Plan • Susan Kneebone and Sharon Pickering
8 New Regionalisms, New Migrations and New Regulations in Africa: Asylum Seekers, Diasporas and Development at the Start of a New Century • Timothy M. Shaw
9 Regionalism, Human Rights and Forced Migration 207Colin Harvey
10 Conclusion: Challenges Ahead • Susan Kneebone
Index

Citation preview

NEW REGIONALISM AND ASYLUM SEEKERS

KNEEBONE-Pi-243.qxd:KNEEBONE-Pi-243.qxd

10/4/07

11:32 AM

Page ii

STUDIES IN FORCED MIGRATION General Editors: Roger Zetter and Jo Boyden Volume 1 A Tamil Asylum Diaspora: Sri Lankan Migration, Settlement and Politics in Switzerland Christopher McDowell

Volume 12 Crossing the Aegean: An Appraisal of the 1923 Compulsory Population Exchange between Greece and Turkey Edited by Renée Hirschon

Volume 2 Understanding Impoverishment: The Consequences of Development-Induced Displacement Edited by Christopher McDowell

Volume 13 Refugees and the Transformation of Societies: Agency, Policies, Ethics and Politics Edited by Philomena Essed, Georg Frerks and Joke Schrijvers

Volume 3 Losing Place: Refugee Populations and Rural Transformations in East Africa Johnathan B. Bascom Volume 4 The End of the Refugee Cycle? Refugee Repatriation and Reconstruction Edited by Richard Black and Khalid Koser Volume 5 Engendering Forced Migration: Theory and Practice Edited by Doreen Indra Volume 6 Refugee Policy in Sudan, 1967–1984 Ahmed Karadawi Volume 7 Psychosocial Wellness of Refugees: Issues in Qualitative and Quantitative Research Edited by Frederick L. Ahearn, Jr. Volume 8 Fear in Bongoland: Burundi Refugees in Urban Tanzania Marc Sommers Volume 9 Whatever Happened to Asylum in Britain? A Tale of Two Walls Louise Pirouet Volume 10 Conservation and Mobile Indigenous Peoples: Displacement, Forced Settlement and Sustainable Development Edited by Dawn Chatty and Marcus Colchester Volume 11 Tibetans in Nepal: The Dynamics of International Assistance among a Community in Exile Anne Frechette

Volume 14 Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement Edited by Jo Boyden and Joanna de Berry Volume 15 Religion and Nation: Iranian Local and Transnational Networks in Britain Kathryn Spellman Volume 16 Children of Palestine: Experiencing Forced Migration in the Middle East Dawn Chatty and Gillian Lewando Hundt Volume 17 Rights in Exile: Janus-Faced Humanitarianism Guglielmo Verdirame and Barbara HarrellBond Volume 18 Development-induced Displacement: Problems, Policies and People Chris de Wet Volume 19 Transnational Nomads: How Somalis Cope with Refugee Life in the Dadaab Camps of Kenya Cindy Horst Volume 20 New Regionalism and Asylum Seekers: Challenges Ahead Susan Kneebone and Felicity RawlingsSanei Volume 21 (Re)constructing Armenia in Lebanon and Syria: Ethno-Cultural Diversity and the State in the Aftermath of a Refugee Crisis Nicola Migliorino

New Regionalism and Asylum Seekers CHALLENGES AHEAD

Edited by Susan Kneebone and Felicity Rawlings-Sanaei

Berghahn Books NEW YORK • OXFORD

KNEEBONE-Pi-243.qxd:KNEEBONE-Pi-243.qxd

10/4/07

11:25 AM

Page iv

First published in 2007 by Berghahn Books www.berghahnbooks.com ©2007 Susan Kneebone and Felicity Rawlings-Sanaei All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system now known or to be invented, without written permission of the publisher.

Library of Congress Cataloging-in-Publication Data New regionalism and asylum seekers : challenges ahead / edited by Susan Kneebone and Felicity Rawlings-Sanaei. p. cm. -- (Studies in forced migration ; v. 21) Includes bibliographical references and index. ISBN 978-1-84545-344-2 (hardback : alk. paper) 1. Political refugees. 2. Regionalism. I. Kneebone, Susan. II. RawlingsSanaei, Felicity. HV640.N48 2007 362.87'561--dc22 2007040042

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Printed in the United States on acid-free paper. ISBN 978-1-84545-344-2 (hardback)

Contents

List of Tables

viii

List of Contributors

ix

Acknowledgements

xi

Introduction: Regionalism as a Response to a Global Challenge 1 Susan Kneebone and Felicity Rawlings-Sanaei Old regionalism: development of the international refugee protection system The 1969 Organisation of African Unity Convention The Cartagena Declaration The Comprehensive Plan of Action New Regionalism: UNHCR’s Convention Plus and Agenda for Protection 1 The Migration–Asylum Nexus and Regional Approaches Stephen Castles Introduction What is the migration–asylum nexus? Notes for a political economy of forced migration Regional responses Conclusion 2 Strategies, Stories and Smuggling: Inter-regional Asylum Flows and Their Implications for Regional Responses Khalid Koser Introduction Methodology The impact of asylum and immigration policies and procedures The role of social networks The growing significance of smuggling Implications of regional responses

25

43

3 Forced Migration, Engineered Regionalism and Justice between States Matthew J. Gibney Introduction History The need for justice amongst states The commodification objection Conclusion

57

4 The Europeanization of Refugee Policy 79 Joanne van Selm Introduction What do we mean by Europe? How does Europe relate to the Refugees Convention refugee ‘policy regime’? What distinctions are there in national refugee policies across Europe? The European level: a Europeanized refugee policy? The future: a Europeanized refugee policy? Conclusion 5 Europeanization of Citizenship and Asylum Policy: a Case Study of the U.K. Nazila Ghanea Introduction EU policies on free movement, citizenship and nationality: the 1992 Maastricht Treaty and 1997 Amsterdam Treaty Free movement, citizenship, nationality and the development of EU asylum policy EU laws and policies and the impact of such on the situation of asylum in the U.K. 6 North American Responses: a Comparative Study of U.S. and Canadian Refugee Policy François Crepéau and Stephen H. Legomsky Introduction The Canadian refugee process The United States refugee process Canada–U.S. cooperation on immigration and border control issues Conclusion

111

137

7 Australia, Indonesia and the Pacific Plan Susan Kneebone and Sharon Pickering Introduction Australia’s refugee policy: from the CPA to Tampa Indonesia and the Pacific Strategy Protection under the Pacific Strategy Conclusion 8 New Regionalisms, New Migrations and New Regulations in Africa: Asylum Seekers, Diasporas and Development at the Start of a New Century Timothy M. Shaw Introduction Migrations and globalizations in Africa Migrations and the ‘new’ Africas ‘New’ regionalisms and contemporary migration Towards ‘new’ African regime(s) for migration at the start of the twenty-first century? New security dilemmas Implications for analysis and policy 9 Regionalism, Human Rights and Forced Migration Colin Harvey Introduction International refugee law and human rights protection Global, regional and national interactions Conclusion 10 Conclusion: Challenges Ahead Susan Kneebone Index

167

189

207

221

231

List of Tables

1.1 Stock of international migrants by major area 1960–2000

31

2.1 Profile of the respondents

46

2.2 Percentage of asylum seekers granted refugee or equivalent status in the EU 15 (2000–02)

47

2.3 Knowledge about immigration and asylum policies and practices upon arrival, by national group

49

2.4 Respondents with family and friends already in the U.K.

51

3.1 The top ten refugee-hosting countries, 2000

65

List of Contributors

Stephen Castles, DPhil. is Professor of Migration and Refugee Studies and Director of the Refugee Studies Centre, University of Oxford. François Crépeau, Ph.D. is Professor and Canada Research Chair in International Migration Law and Scientific Director of the Centre for International Studies at the University of Montreal. Jeffrey Crisp, Ph.D. is Director of Policy and Research at the Global Commission on International Migration, Geneva. Nazila Ghanea, Ph.D. is Senior Lecturer in International Law and Human Rights at the Institute of Commonwealth Studies, University of London. Matthew J. Gibney, Ph.D. is University Lecturer in Forced Migration, Refugee Studies Centre, University of Oxford. Colin Harvey, Ph.D. is Professor of Human Rights Law, School of Law, Queen’s University Belfast and Director of the Human Rights Centre. Susan Kneebone, Ph.D. is Associate Professor, Faculty of Law, Monash University and a member of the Castan Centre for Human Rights Law, Faculty of Law, Monash University. Khalid Koser, Ph.D. is Lecturer in Human Geography at University College London and a Senior Policy Analyst at the Global Commission on International Migration, Geneva. Stephen H. Legomsky, Ph.D. is Charles F. Nagel Professor of International and Comparative Law, Washington University, St Louis, U.S.A. Sharon Pickering, Ph.D. is Senior Lecturer in Criminal Justice and Criminology at the School of Social and Political Enquiry, Faculty of Arts, Monash University.

x

List of Contributors

Felicity Rawlings-Sanaei, Ph.D. is Research Fellow at the Monash Institute for the Study of Global Movements, Monash University. Timothy M. Shaw, Ph.D. is Professor and Director of the Institute of Commonwealth Studies, University of London. Joanne van Selm, Ph.D. is Senior Policy Analyst at the Migration Policy Institute, Washington DC.

Acknowledgements

The chapters in this book were presented initially in May 2004 at an international workshop entitled ‘Regionalism and Forced Migration: The Effect Upon Asylum Policies and Procedures’ held at the Institute of Commonwealth Studies, University of London which was funded by the Monash Institute for the Study of Global Movements, Monash University. We are especially grateful to Professor John Nieuwenhuysen AM, Director of the Monash Institute for the Study of Global Movements, who conceived the idea of the workshop and facilitated its proceeding and to Professor Timothy Shaw, Director of the Institute of Commonwealth Studies, who co-hosted the workshop. The workshop was co-badged with the Refugee Studies Centre, University of Oxford and we thank both the Director of the Centre, Professor Stephen Castles who embraced the concept of the workshop with enthusiasm and Dr Mathew Gibney who helped us to formulate the workshop themes. Our thanks also to Professor Merran Evans, Pro Vice-Chancellor (Planning) Monash University, formerly Director of the Monash London Centre whose office assisted with the organization of the workshop. We would like to thank all who participated in the workshop and who offered critical comment and valuable insights on a number of papers, in particular Dr Jeff Crisp then of the Department of International Protection, UNHCR, Geneva and his colleague Mr Rick Towle, Professor Marian Fitzgerald, London School of Economics, and Mr Josh Hatton, Institute for Social and Cultural Anthropology at the University of Oxford. We are also grateful to Ms Karen Visser, Director, International, Europe and Americas Section, the Australian Department of Immigration and Multicultural and Indigenous Affairs and Mr David Watt, Chief Migration Officer, Australian Department of Immigration, London who presented a paper on the ‘Australian Government Perspective’ which was useful in revising Chapter 7 for this publication. The workshop would not have been possible without the ever-willing cooperation of the paper presenters each of whom has conscientiously revised and updated a chapter for this publication. Finally, for assistance in the editing of this volume, we are especially grateful to Edwina Howell and Isabel Knott. Susan Kneebone and Felicity Rawlings-Sanaei

Introduction: Regionalism as a Response to a Global Challenge Susan Kneebone and Felicity Rawlings-Sanaei The current challenge for the international refugee protection system is to meet the protection needs of asylum seekers whilst engaging the cooperation of the global community. In this context, regional approaches are often advocated to achieve durable solutions for asylum seekers and refugees. For example, in its 2000 Note on International Protection, the UNHCR suggested that: Harmonized regional protection approaches are an important means of strengthening the international refugee protection regime. UNHCR’s active participation in the design of these regional approaches has sought to guarantee consistency with universal standards and to ensure burden sharing and international solidarity, while responding to specific regional concerns. (UNHCR 2000: paragraph 39)

In this statement it is implicit that regional responses shore up the international protection regime by cutting across and perhaps weakening the power of the Nation state.1 The reasons for this approach are not hard to find. The responses of nation states to refugees and asylum seekers in the last two decades, in the form of non-entry and other restrictive policies, are well known. Another suggested reason for promoting regional responses lies in their ability to provide practical solutions more suited to regional situations for what are global problems (De Andrade 1998). Frequently, regionalised responses to refugee issues are promoted in the form of ‘harmonization’ and burden-sharing by states within a region. The question that this collection of essays tackles is whether regional or collective responses, generally involving some degree of regional cooperation or ‘regionalism’, can satisfy the protection needs of asylum seekers and refugees. In this book, the authors discuss the

2 | New Regionalism and Asylum Seekers

significance of regionalism and describe different models of regionalism and approaches to this problem. For example, in Chapter 1 Castles explains the significance of the differences between extra-, intra- and inter-regional patterns of migration for policy responses to forced migrants. In Chapter 2 Koser discusses the nature of inter-regional asylum movements. Gibney in Chapter 3 contrasts the period of 1945 to 1965 which he describes as one of ‘unregulated regionalism’, with the later period of ‘engineered regionalism’. In Chapters 4 and 5 by contrast the ‘superimposed’ model of the European Union (EU), which seeks ‘harmonization’ of policy on asylum seekers for the protection of EU interests is discussed. This latter supra-national model of regionalism has implications for the sovereignty of member states within the EU and the direction of their national asylum policies (see Chapter 5). This EU policy also contains an external element involving engagement with countries bordering the region and assistance to regions outside the EU. Conversely, the recent post-9/11 cooperative response of the U.S.A. and Canada to refugees and asylum seekers illustrates a new model of spontaneous intra-regional response (see Chapter 6). Similarly, in Chapter 7 Australia’s ‘Pacific Solution’ or ‘Strategy’ which involves offshore or extra-territorial processing of asylum seekers, is described. This in turn is based upon the U.S.A. interdiction programme, and is itself considered as a possible model by the EU for the Mediterranean. This demonstrates another sense of ‘regionalism’ – the borrowing of models between regions. This brief summary of some of the essays illustrates that the term ‘regionalism’, like ‘globalism’ (with which it is often linked), defies precise definition. When we talk about ‘globalization’ we refer to a world of interconnected societies and activities which both work through and across nation states (Mason 2001). ‘Regionalism’ by contrast suggests a collective or communal response within a region to a global issue where the parties share a common purpose or destiny. Depending upon the context, the response may be based upon shared cultural, social, political, or economic interests or a combination of these. One issue which this book addresses is how to promote a shared common purpose or destiny between regional and global interests in this context. The discussion in this book parallels the attention that is being given to this concept in other contexts. In the literature, there is a broad affirmation of the need for regional arrangements to seek enduring solutions that address problems on a large scale, such as forced migration, environmental degradation, governance, poverty, security, disease and drug trafficking, to name but a few (Hettne 1996; Wilding 1997; Wheeler 2002; Chandra 2004). In this literature the view held is that a more

Introduction: Regionalism as a Response to a Global Challenge | 3

coordinated approach will facilitate collective action problem solving within the region for a global problem. In this context ‘new regionalism’ is contrasted with ‘old regionalism’. As Bjo˝rn Hettne explains: Whereas the old regionalism was created ‘from above’ (often through superpower intervention), the new is a more spontaneous process from within the regions, where the constituent states now experience the need for cooperation in order to tackle new global challenges. Regionalism is thus one way of coping with global transformation, since most states lack the capacity and the means to manage such a task on the ‘national’ level. (Hettne 1996: 5)

In the context of refugees and asylum seekers, regionalism is a more complex notion. Whilst we can speak of an ‘old’ and a ‘new’ regionalism in similar terms to those used above (see for example, the U.S.A.-Canada agreement discussed in Chapter 6 and the Australian model discussed in Chapter 7), the terms are also used in this book to refer to historical approaches. For example, in its 2004 General Conclusion on International Protection, (UNHCR 2004a: paragraph (b) and paragraph (t)) the UNHCR discusses both the need for cooperation at the national and regional level and the value of the older ‘comprehensive’ approaches which are described in this chapter. This recognizes that there are limits to what can be achieved by regional approaches alone. On the one hand, in the industrialized North regionalism is often symptomatic of ‘protectionism’ and restrictive approaches as states within a region combine to erect barriers to entry (such as the EU). Moreover, the policies of such states since the 1980s have been directed at ‘containing’ the problem in the regions of origin in the developing South (see Castles, Chapter 1 and Gibney, Chapter 3). Today, the reality is that the bulk of the world’s refugees live in ‘protracted’ situations in developing countries close to the borders of their country of origin (Crisp 2003). On the other hand, in contrast to Bjo˝rn Hettne’s concept of ‘new regionalism’, it is clear that the poorer regions of origin cannot solve the problem without assistance from the industrialized North and the international community (see Shaw, Chapter 8 on the African situation). Thus, as described later in this chapter, considerable effort is being made by the EU and the UNHCR to aid development in such regions. In addition, there is the problem of ‘secondary movements’, of refugees who move from places of asylum in a region of origin to a third country. The position of such transit countries is another factor to be considered in assessing the role of regional or collective responses. In this chapter we describe the ‘old’ approaches to refugee protection which to a large extent were created ‘from above’, but which also arose as ‘spontaneous processes from within the regions’. We then analyse the

4 | New Regionalism and Asylum Seekers

elements of these approaches and describe recent efforts by the UNHCR to revive these models of regionalism through the Convention Plus and the Agenda for Protection. We describe some recent ‘new’ regional programmes and foreshadow the discussion in this book.

Old regionalism: development of the international refugee protection system A glance at the history of the international refugee protection system illustrates that the first accords were regional in the sense that they were directed at a perceived ‘European’ problem. They also coincided with the creation of the League of Nations and the appointment of the first High Commissioner for Refugees in 1921 and thus were the work of the ‘international’ community. At this time there was a recognized interdependence of the regional and the international. However from the 1960s onwards, refugee crises in other parts of the world led to the development of other regional models. The first European accords dealt with the influx of (mostly) Russian and Armenian refugees in the period 1920–1935, and were intended to facilitate the international movement and resettlement of these groups.2 Importantly these accords referred to specific groups or categories of people and ‘were formulated in response to the international legal dilemma caused by the denial of State protection’ (Hathaway 1984: 358). For the first time, it was acknowledged that refugee movements and migration were interconnected, thus challenging the tradition of asylum for political and religious refugees which had largely prevailed in the previous centuries (Barnett 2002). The next phase in the development of refugee protection also stressed the lack of state protection but additionally emphasized the personal reasons for flight. They were largely directed at the plight of groups such as Jewish people fleeing from Germany between the two world wars. Like the measures in the period between 1920 and 1935, they were intended to facilitate freedom of movement (Hathaway 1984: 379). They also foreshadowed the individual concept of a refugee which the 1951 refugees convention perfected. The 1951 Convention Relating to the Status of Refugees3 (Refugees Convention) which was negotiated in the aftermath of the Second World War was intended to deal with the European problem of 1.25 million refugees arising out of the postwar chaos. In particular it was directed at the victims of Nazi and other fascist regimes. This is recognised by the refugee definition which describes a refugee as a person with a ‘well-

Introduction: Regionalism as a Response to a Global Challenge | 5

founded fear of being persecuted’ as a result of ‘events occurring before 1 January 1951’ (Article 1A(2)). Signatories to the convention could choose to interpret this as referring to events in Europe ‘or elsewhere’ (Article 1B(1)). As a result of the 1967 Protocol Relating to the Status of Refugees4 the temporal and geographical limits were removed. In the postwar Cold War period, crises such as the Hungarian one of 1956 and the Czech uprising in 1968 emphasized the ideological basis of the European refugee problem. But from the 1970s onwards refugee crises in other parts of the world, largely in developing countries affected by decolonisation and independence movements in the period Gibney labels ‘incipient globalism’ (see Chapter 3), suggested that the problem was more complex and required different approaches. The importance of the 1967 Protocol was to recognize the global nature of the problem, (Barnett 2002: 248) the universality of the rights of refugees, and the possibility of global solutions. Although the Refugees Convention arose from European events, and was brokered (largely) by European nations, it was also a manifestation of the development of a system of international law and institutions intended to provide responses and solutions to a global problem. The importance of the establishment of the United Nations High Commissioner for Refugees (UNHCR) in 1951 under the United Nations General Assembly cannot be underestimated. This development was part of a package of far-reaching human rights instruments and measures which were intended to recognize the universality of human rights. The Refugees Convention is an instrument of human rights protection which implements the basic right to flee persecution and to seek and enjoy asylum, and which enshrines the right against refoulement (Article 33(2)). In the remaining discussion in this chapter we describe specific regional approaches which developed in Africa, Latin America and Southeast Asia, and analyse the protection outcomes of these approaches for asylum seekers and refugees. This discussion highlights the increasingly important role of the UNHCR in these processes.

The 1969 Organisation of African Unity Convention The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention)5 arose in the context of independence movements and massive displacements in the postwar decolonisation of Africa. Between 1963 and 1966 the number of refugees in Africa rose from 300,000 to 700,000 (Rankin 2005: 2). It was a specific response to the massive displacements in Africa in this period

6 | New Regionalism and Asylum Seekers

and was intended to fill the gaps in the Refugees Convention definition, with its temporal and geographical limits. The importance of the OAU Convention is its attempt to tailor protection to the particular issues raised in the region, and to provide for regional solutions. The drafting of the OAU Convention was a cooperative effort between the OAU collective and the UNHCR (Arboleda 1991: 193). All forty-one states which were independent in 1969 when the OAU Convention was adopted became signatories to it. The OAU Convention is expressed to be complementary to the 1951 Refugees Convention and the international regime of human rights. These facts are reflected in the preamble and Articles I(1) and VIII of the OAU Convention. There were three broad objectives for the OAU Convention (Rankin 2005: 2). The first was to balance Africa’s traditional hospitality and responsibility to strangers with the need to ensure security and peaceful relationships in the region. The preamble to the OAU Convention refers to the fact that the problems and unrest caused by increasing number of refugees and displaced persons on the African continent is creating discord amongst states and encouraging the activities of ‘subversive elements’.6 Its aim is to provide solutions ‘in the spirit of the Charter of the Organisation of African Unity and in the African spirit’. The second objective was to complement the 1951 Refugees Convention, as stated above. The third was to meet the specific needs of African refugees. Importantly, the OAU Convention attempts to link the refugee definition with the actual root causes of displacement (Turner 1994: 285). Its underlying goal is to solve the African refugee problem. This third objective is reflected in the additional refugee definition in Article I(2) of the OAU Convention which complements the 1951 Refugees Convention definition which is set out in Article I(1); Article I(2) of the OAU Convention states: The term ‘refugee’ shall also apply to every person, who owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. (OAU Convention 1951: Article 1(2))

These events, namely, ‘external aggression, occupation, foreign domination or events seriously disturbing public order’ reflect the struggles for independence from former colonial powers at the time that the OAU Convention was entered into. More than half of the refugees were from former colonies, although a substantial proportion were refugees affected by ethnic and boundary disputes (Arboleda 1991: 190) –

Introduction: Regionalism as a Response to a Global Challenge | 7

a fact which was perhaps not sufficiently reflected in the complementary refugee definition at that time, and even less so today as the root causes for displacement now are largely massive abuses of human rights and civil wars (Okoth-Obbo 2001: 112). However the importance of this complementary definition was that it brought in a communitarian concept of a refugee which focuses upon the nature and quality of the community, that is, upon economic, social and cultural rights rather than upon individual rights (Rankin 2005: 7).7 Article II of the OAU Convention which is headed ‘Asylum’ deals specifically with asylum, non-refoulement and durable solutions: Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality. (OAU Convention 1951: Article II (1))

Unlike the 1951 Refugees Convention, the right of asylum is specifically mentioned, although it is qualified by the requirement that the right be ‘consistent with their [domestic] legislations’. To take the political ‘sting’ out of asylum, Article II(2) states that the grant of asylum is ‘a peaceful and humanitarian act’. The non-refoulement obligation is contained in Article II(3) and is applicable to persons whose ‘life, physical integrity or liberty’ would be threatened for the reasons set out in both refugee definitions. Article II contains provisions which deal with solutions – asylum in the form of re-settlement (Article II(1)), temporary protection pending resettlement (Article II(5)) but away from the ‘frontier of their country of origin’ (Article II(6)). Article V deals at some length with voluntary repatriation. Article II(4) brings in the concept of burden-sharing: Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such Member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the Member State granting asylum. (OAU Convention 1951: Article II(4))

The discussion by Shaw in Chapter 8 of this book suggests that in practice the OAU Convention has not provided solutions to root causes, or lived up to its burden-sharing intentions and ‘sovereign shattering possibility’ (Tuepker 2002: 411). It has been suggested (Rutinwa 1999) that from about the mid-1980s onwards the African nations moved away from the spirit of the OAU Convention. This was in part due to the policy of ‘containment’

8 | New Regionalism and Asylum Seekers

of refugees which prevailed at that time and the effect that it had on host countries. Increasingly the host countries disregarded the basic rights of refugees and the implementation of durable solutions other than repatriation. This in turn had a negative effect on inter-state relations in the region. In 1999 the UNHCR estimated that there were over 4 million refugees in Africa, and several times that number of internally displaced persons (Okoth-Obbo 2001: 82). In 2004 the number of refugees and internally displaced persons was not changed substantially as new refugee crises replaced the old (UNHCR 2004b). Many of these people live in protracted refugee situations and face continuing security risks, and social and economic hardships. The UNHCR rather than the OAU has taken a lead role in refugee protection in Africa. The prevailing view is that it is time to revisit the OAU Convention and its implementation.

The Cartagena Declaration The 1969 OAU Convention was a direct inspiration for the 1984 Cartagena Declaration on Refugees adopted at a Colloquium held at Cartagena, Colombia in November 1984,8 (the Cartagena Declaration) which relates to the ‘refugee situation’ in Central America. The Cartagena Declaration differs from the OAU Convention as it did not emerge from within a regional organization but out of an ad hoc group of experts (Goodwin-Gill 1996: 21) and ten Latin American governments. However, this ‘aspirational’ statement remains the foundation for refugee protection in the region. Its content and importance has been confirmed in numerous subsequent colloquiums,9 including most recently on its twentieth anniversary in Mexico City in 2004. The Cartagena Declaration was approved by the 1985 General Assembly of the Organization of American States and is the basis of the process arising from the International Conference on Central American Refugees (CIREFCA), Guatemala City, 29–31 May 1989 which produced a Declaration and Concerted Plan of Action in Favour of Central American Refugees, Returnees and Displaced Persons. A special feature of this regional approach is a high level of cooperation with the UNHCR (discussed below). It is also regional in the sense that the Cartagena Declaration states that the problem must be ‘tackled in the light of the necessary coordination and harmonization of universal and regional systems and national efforts’ (Cartagena Declaration, paragraph I). Like the OAU Convention, the Cartagena Declaration was a response to mass refugee influxes, in this case arising from political and military

Introduction: Regionalism as a Response to a Global Challenge | 9

instability in Central America in the 1970s and 1980s. As with the OAU Convention, it is intended to ensure peace processes and the reintegration of refugees in their home countries. It is also claimed that the Cartagena Declaration confirms ‘regional norms’ regarding the granting of asylum (Arboleda 1991: 189). Until the making of the Cartagena Declaration, the history and tradition of asylum (dating from the 1889 Montevideo Treaty on International Penal Law) was one of political asylum for high-profile or well-known individuals. But in the 1970s and 1980s the refugees were ‘displaced masses of peasants’ (Arboleda 1991: 201). Almost 2 million people from El Salvador, Guatemala, and Nicaragua were displaced during this period. Some 200,000 Central Americans were formally recognized and registered as refugees.10 Thus the Cartagena Declaration like the OAU Convention reflects the changing nature of refugee populations and the causes of displacement. The prime purpose of the Cartagena Declaration was to promote the adoption of national laws to implement the 1951 Refugees Convention and 1967 Protocol, ‘thus fostering the necessary process of systematic harmonization of national legislation on refugees’ (Cartagena Declaration, paragraph III(1)). For that purpose it was recommended that the definition of a refugee for ‘use in the region’ should complement the 1951 Refugees Convention. It was stated that in addition to the 1951 Refugees Convention definition, legislation should include: [P]ersons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order (Cartagena Declaration, paragraph III(3)).

Under this definition, refugees are primarily persons whose life, security or liberty is threatened. The inclusion of generalized violence, internal conflicts, and massive violations of human rights expands the refugee definition beyond that of the OAU Convention, and picks up the gaps in that definition. Like the OAU Convention, the Cartagena Declaration links the refugee definition to root causes. The declaration also confirms that the granting of asylum is ‘humanitarian’ in nature, and reiterates the importance and meaning of the principle of non-refoulement. The declaration reflects the current experiences of refugees by expressing its ‘concern’ at the problem raised by military attacks on refugee camps and settlements in different parts of the world (Cartagena Declaration, paragraph III(7)). Additionally, going beyond the refugee issue, it expresses its ‘concern’ at the ‘situation

10 | New Regionalism and Asylum Seekers

of displaced persons within their own countries’ (Cartagena Declaration, paragraph III(9)). As with the OAU Convention, the UNHCR had an important and ‘highly visible’ role (Arboleda 1991: 201) which is recognised in paragraph I of the Cartagena Declaration. The UNHCR had established regional offices in Central America in the late 1960s in response to the serious refugee problems. An express purpose of the declaration (paragraphs II(e), (f), (g), (j), (k), (l), (n) and (o)) is to support the work of the UNHCR and to coordinate with it. On the twentieth anniversary of the Cartagena Declaration, the UNHCR began regional consultations to discuss new refugee challenges and to commemorate the declaration. According to the high commissioner in a statement dated 15 November 2004, the declaration’s expanded definition is included in the legislation of ten countries and applied by another thirty, and used as a standard of interpretation by another. It was described as an ‘historical and exemplary commitment of an entire region to refugee rights’. The UNHCR took the opportunity of this occasion to link the declaration to the Convention Plus process by launching a Plan of Action to Enhance Refugee Protection in Latin America. In particular this plan is directed at the problem of refugees concentrated in urban areas, and Colombian refugees in neighbouring countries. The plan is aimed at encouraging the self-sufficiency of ‘urban’ refugees and providing ‘durable’ solutions for Colombian refugees in the region in the form of resettlement. Whilst the UNHCR extols the declaration as an icon of regional efforts, the claimed success may be somewhat exaggerated (Gottwald 2004). Throughout the period the UNHCR has continued to play a prominent role in determining refugee status under its mandate (UNHCR 2005). Whilst both the 1969 OAU Convention and the 1984 Cartagena Declaration were above all an expression of the political will of actors within the regions, they each show the limits of regional initiatives which lack international support. In 1999 for example, the late refugee advocate Arthur Helton (Helton 1999) was calling for a regional arrangement involving international cooperation. As examples of ‘new regionalism’ the OAU Convention and the Cartagena Declaration show both the strengths and weaknesses of such approaches. The prominent role of the UNHCR is one feature which is common to both the OAU Convention and the Cartagena Declaration. The events which led to the 1969 OAU Convention and the 1984 Cartagena Declaration involving large-scale refugee movements resulted in a broadening of the UNHCR’s mandate to ‘persons of concern to the international community’ (Goodwin-Gill 1996: 8–18). From the mid-1970s,

Introduction: Regionalism as a Response to a Global Challenge | 11

events in South-east Asia also brought out the limitation of the Refugees Convention definition, which provides that a refugee must be outside their country of origin. In the 1970s as the superpowers fought out the Cold War in South-east Asia, the UNHCR extended its ‘good offices’ mandate to internally displaced persons ‘of concern’ in Vietnam and Laos so as to avoid the limitation on the refugee definition requiring a person to be beyond the border of their country of origin. At this time the UNHCR also extended the range of activities to provide direct humanitarian aid (UNHCR 2000: 81). The decade from the mid-1970s to mid-1980s saw a substantial rise in the number of refugees worldwide. In 1974 the UNHCR estimated that there were 2.4 million refugees, but by 1984 the figure was 10.5 million (Barnett 2002: 249). In 1996 this figure had risen to 27 million although the figure now included internally displaced persons under the UNHCR’s expanded mandate. This was the year in which the 1989 Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees11 officially came to an end. We turn now to see what lessons are to be learnt from it as an experiment in ‘regionalization’.

The Comprehensive Plan of Action The Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees came about to cope with the human fall-out from an ideologically based war. The CPA involved an unprecedented approach to situations of largescale influx by asylum seekers. Up to 3 million people fled from IndoChina in the two decades after 1975. The CPA was unique for involving the coincidence of three factors: being instigated by countries within the region, and involving the cooperation of the country of origin, as well as the international community. The last two features set it apart from the other two models we have examined. As an experiment it is arguable that it has left a lasting legacy of negative attitudes and approaches to asylum seekers and refugees, including a preference for ‘unilateral’ (Tran 1995) rather than cooperative solutions, and a perception that asylum seekers should seek legal means to ‘migrate’. Yet paradoxically it is a model of a regional and a comprehensive approach. The CPA developed in two stages. The first stage was brokered by the UN Secretary General in 1979, resulting from pressure by the Association of Southeast Asian Nations (ASEAN), and involved the granting of temporary asylum to be followed by resettlement in a third country. In an attempt to deter clandestine departures it was accompanied by an Orderly Departure Programme (ODP). However when the problem continued to

12 | New Regionalism and Asylum Seekers

escalate, it was followed by the formal CPA in 1989 which had an emphasis on voluntary returns and reintegration in the country of origin. The background to these developments was as follows. The exodus of the Vietnamese boat people began following the communist victories in the former French colonies of Indo-China, with the collapse of the South Vietnamese government in April 1975. This was to be the largest mass departure of asylum seekers by sea in modern history. Yet, although these asylum seekers fitted the classic definition of ideological refugees, the Indo-Chinese crisis coincided with the beginning of a restrictive approach to refugee intakes in Western states. By this time international economic growth had declined and unemployment had grown (Barnett 2002: 248). It was in this context that the terms ‘economic refugees’ and ‘illegal immigrants’ became common usage for asylum seekers and refugees.12 The global economic climate, plus other pressures in the region shaped the response. Initially those fleeing Vietnam, Cambodia and Laos, sought refuge in the neighbouring countries of Hong Kong, Thailand, Malaysia, Indonesia, Singapore and the Philippines, none of which were signatories to the 1951 Refugee Convention at that point. The asylum seekers were granted prima facie refugee status. The countries of first asylum were initially willing and able to respond generously to the crisis because resettlement of refugees to countries outside the immediate region provided a permanent solution. However, despite the resettlement arrangements, the sheer number of refugees tested both the capacity for countries in the region to provide them asylum and the will of Western states to resettle them (UNHCR 2000: 79). In the late 1970s the number of refugees fleeing to ports of first asylum began to outweigh resettlement quotas. Between 1975 and 1979 over 600,000 Indo-Chinese refugees had fled their homeland. In the spring of 1979 the departure rate of Vietnamese escalated dramatically, to 40,000 per month (Tran 1995: 469). As a result, boat ‘push backs’ by countries that had offered temporary safe haven in the past became routine and boatloads of Vietnamese were left to the mercilessness of pirates and the high seas. Thousands of asylum seekers may have perished at sea as a result (UNHCR 2000: 83). In June 1979, the member states of the Association of Southeast Asian Nations (ASEAN) – Indonesia, Malaysia, the Philippines, Singapore and Thailand – issued a statement declaring that they had ‘reached the limit of their endurance and [had] decided that they would not accept any new arrivals’ (UNHCR 2000: 83). In immediate response to this crisis, sixty-five countries at the International Conference on Refugees and Displaced Persons in Southeast Asia, held in Geneva

Introduction: Regionalism as a Response to a Global Challenge | 13

20–21 July 1979, reached an agreement including the countries of origin in which: • ASEAN countries agreed to provide temporary asylum. • Vietnam undertook to promote orderly departures (the ODP), in an effort to stem the illegal emigration of Vietnamese to resettlement countries. • Third countries agreed to accelerate the rate of resettlement of asylum seekers. It is generally accepted that this 1979 agreement endorsed the general principles of asylum and non-refoulement (Robinson 2004: 319) and codified the presumption that the Vietnamese boat people were genuine refugees (Hathaway 1993: 686). It did not call for an assessment of the origins of exodus, but encouraged a burden sharing approach (Bronée 1993: 535–6). The involvement of the Vietnamese government was a deliberate attempt to engage it in addressing the crisis in its totality (Bronée 1993: 539). However, by the late 1980s both the countries of first asylum and the countries of resettlement began to review their policies. By 1984 annual departures under the ODP had risen to 29,100 in excess of the spontaneous regional boat arrivals of 24,865 (UNHCR 2000: 86). There was a renewed surge in Vietnamese departures in 1987–88. Western governments became increasingly concerned about the number of refugees arriving in their countries and expressed their suspicion that policies of open ended resettlement were drawing economic opportunists to their shores. The Malaysian government requested the UNHCR to convene a second international conference, in which ASEAN again participated. As a result, the Comprehensive Plan of Action for IndoChinese refugees (CPA), was agreed upon, at a Geneva Conference held from 13–14 June 1989, by the UNHCR, the countries of first asylum and fifty resettlement countries in the West. The new features of the agreement were the introduction of: • A system of individual screening of asylum seekers to determine their status as refugees; • A programme of return for those who failed the test.

14 | New Regionalism and Asylum Seekers

As a result of this agreement, the countries of first asylum began to respond generously once again. Was the CPA a success? Certainly the CPA finally brought an end to the flow of Vietnamese asylum seekers. Over the two decades from 1975, of the 3 million who fled from Indo-China, 2.5 million found new homes and 0.5 million persons returned home (UNHCR 2000: 102). The CPA’s five main objectives were: • To reduce clandestine departures through prevention, information campaigns and the ODP. • To provide temporary asylum to all asylum seekers until their status is established. • To determine the refugee status of all asylum seekers in accordance with international standards. • To resettle all those recognized as refugees. • To return and to repatriate all those not recognized as refugees. Through the ODP, the CPA arguably pre-empted the right to seek asylum and created a ‘norm’ of ‘orderly departures’ or ‘queues’ which persists in the policies of some Western countries today. The CPA has however been held up as a successful cooperative regional approach to refugee flows that reinstated the principle of asylum in the countries of first asylum (UNHCR 2000: 84). In general the principle of asylum was honoured throughout the region, in exchange for the promise of resettlement. By the end of the CPA, most ASEAN countries had become signatories of the Refugees Convention (Robinson 2004: 323–4). Resettlement was the ‘engine that powered the many moving parts of the CPA’ (Robinson 2004: 326). It has been claimed that without the option of resettlement, the countries of first asylum would not have agreed to cooperate in regional status determinations (Robinson 2004: 326). During the eight years of the CPA, more than 530,000 Vietnamese and Laotians were resettled in (mainly) Western countries. Governments in the resettlement countries entered into agreements with the government of Vietnam under the ODP. But arguably the motives of governments in signing up to the CPA were more to do with security and economic issues rather than burden-sharing or protection. There are indications that it involved selective burden-sharing, which favoured the interests of the Western states, rather than any sense of genuine sharing.

Introduction: Regionalism as a Response to a Global Challenge | 15

The predominant features of the CPA were the emphasis on orderly departures and resettlement. But additionally in this period the UNHCR took on a humanitarian role which involved monitoring the situation in the country of origin. Importantly the government of Vietnam was cooperative in the whole process. The introduction of refugee status determinations on a large scale was another important feature of the CPA. This was significant for two reasons. First, it introduced the idea that asylum did not automatically follow from flight. Secondly, it had an educative role. Under the CPA the principal countries of first asylum, Hong Kong, Indonesia, Malaysia, the Philippines and Thailand, were provided the new role of undertaking individual refugee status determination. Thus each country adopted procedures providing for asylum seeker access to the UNHCR, a refugee status determination interview, services of an interpreter, and the possibility of review by an additional authority (UNHCR 2000: 85). Hong Kong also provided access to the courts for judicial review. Apart from the Philippines, none of the countries that agreed to implement refugee status determination procedures under the CPA were parties to the Refugees Convention and thus had no previous experience in determining refugee status. Unlike the other examples of regional agreements we have examined, there was no attempt to formulate a complementary refugee definition. These were after all ‘ideological’ refugees. Moreover, to underline the proper nature of refugee protection, the CPA expressly required the Refugees Convention definition to be interpreted in light of fundamental principles of human rights. The UNHCR Handbook, which ‘equates persecution with serious violations of human rights’ was to ‘serve as an authoritative and interpretive guide in developing and applying the criteria’.13 Unfortunately, the CPA did not prevent individual countries from applying their own standards when deciding who to repatriate (Schloenhardt 2000: 35). The UNHCR produced guidelines to encourage uniformity of practice in the region. But, as the UNHCR’s role in this respect under the CPA was to ‘observe and advise’, individual states retained control over the selection process. Many critiques emerged of the processes. Of all the countries of first asylum, Hong Kong had the most advanced legal system, however even her procedures were said to be flawed and ‘not to accord fully with the basic requirements for a fair and effective determination system.’14 Moreover, in some countries, the military who were involved in receiving the boats, were also given the task of screening (Nichols and White 1993: 25). Further, resettlement states had the right to reject the decisions made by the country of first asylum and some resettlement states even raised their

16 | New Regionalism and Asylum Seekers

entry bars by using extra criteria (Nichols and White 1993: 25). The presence of a ‘double screening process’ under the CPA, highlights how resettlement states maintained a national interest agenda over finding durable solutions to a humanitarian crisis. In 1992 the Lawyers Committee for Human Rights reported that ‘at least hundreds, perhaps thousands of Vietnamese are being wrongfully denied refugee protection because of decision making deficiencies’ (Mushkat 1993: 563). This meant in some cases that asylum seekers were involuntarily repatriated, and were subject to refoulement. Another controversial aspect of the CPA was the implementation of the repatriation objective. Although the return programme under the CPA was intended to be voluntary, the CPA did acknowledge the possibility of its evolution into mass involuntary deportations. Under the CPA parties had agreed that: In the first instance, every effort will be made to encourage the voluntary return of [those whose applications are rejected] […] If, after the passage of reasonable time, it becomes clear that voluntary repatriation is not making sufficient progress toward the desired objective, alternatives recognized as being acceptable under international practices would be examined.15

The first involuntary deportation exercise was undertaken by Hong Kong in December 1979. The consequent international criticism caused Hong Kong to suspend unilateral involuntary returns but this lead to the disguising of identical objectives in an agreement, reached between Hong Kong, the United Kingdom and Vietnam in October 1991, to implement an ‘Orderly Return Programme’ (UNHCR 2000: 85). Eventually all the countries of first asylum signed Orderly Return Programme agreements under which the UNHCR granted transportation costs and logistical support on the condition that returns did not involve force. However the distinction between voluntary and involuntary returns became blurred. Approximately 13 per cent of Vietnamese ‘boat people’ were returned under the Orderly Repatriation Programme, while the remainder returned under the UNHCR voluntary repatriation programme.16 The CPA was concluded in 1996 by the camps in countries of first asylum being almost cleared. By March 1999, 110,000 boat people had been returned to Vietnam, some of whom were judged to have valid refugee claims.17

Introduction: Regionalism as a Response to a Global Challenge | 17

The legacies and lessons of the CPA The CPA heralded many of the current issues of refugee protection, such as the problem of protecting refugees within ‘mixed’ flows, the problem of distinguishing genuine and ‘economic’ refugees and the tendency of wealthier states to act in self-interest. More importantly, it dealt with the problem of refugees in flight, and with ‘irregular’ secondary movements. It delivered ‘durable’ solutions in the form of resettlement and repatriation. Opinion is divided as to whether or not the CPA was a ‘success’. For example, Hathaway believes that the CPA ‘failed’ because it originated from a ‘tripartite collusion among Asian governments with little commitment to human rights law, superficially interested developed states, and a largely impotent international agency [the UNHCR]’ (cited by Nichols and White 1993: 32). However Robinson hails it as a ‘qualified success’ (Robinson 2004). It was the first burden-sharing arrangement among countries of origin, first asylum and resettlement, and attempted to address the whole problem with concrete solutions. It also considered the position of transit countries and moved swiftly to protect the interests of both those countries, and the human rights of the asylum seekers. Arguably it bolstered the waning principle of asylum in the region. Further, in this period the agents, including the UNHCR, NGOs and countries of first asylum all gained enormous experience at dealing with refugee issues. There were however problems in its implementation, and conception. For example, the emphasis on resettlement and forced returns possibly undermined the right to seek asylum elsewhere and the principle of nonrefoulement, as well as the quest for solutions that address root causes and which involve genuine burden sharing. The CPA arguably led to ‘resettlement-fatigue’ and disenchantment with collective solutions. It also brought the role of the UNHCR under the spotlight. During the period of the Indo-China crisis, the UNHCR faced new challenges and increasing attention as it coped with the immediacy of the situation and an increasingly unsympathetic international donor community as its role became redefined as one of humanitarian rather than legal protection. For unlike the more ‘contained’ regional situations and approaches which applied to the OAU Convention and the Cartagena Declaration, the CPA was a collective global international effort. It attempted to provide a comprehensive global solution. Whereas in Africa and Latin America the UNHCR continued to play a lead and respected role, in South-east Asia its role was more controversial. This is shown by

18 | New Regionalism and Asylum Seekers

the controversy surrounding its role in refugee status determination procedures and the repatriation programme. The main differences between the arrangements for the OAU Convention and the Cartagena Declaration and the CPA were in the scale and scope of the operations. Whereas the former were concerned with peace processes and reintegration of refugees within a region, the CPA involved a mass exodus following conflict and required balancing the interests of many parties: the refugees, host countries, and the resettlement countries. There were also favourable institutional factors in the case of the CPA, such as the strong role taken by ASEAN and the cooperation of the resettlement states. The political and ideological factors cannot be ignored. By contrast the African and South American situations did not achieve the same profile, until recently perhaps. In relation to Africa, the current crisis of refugees in transit in Mediterranean countries to the south of the EU is drawing attention to the plight of the sub-Saharan countries. However, it is arguable that the situations in these sub-Saharan countries, many of which involve protracted refugee situations, stem at least in part from the fiscal policies of the industrialized nations (Rutinwa 1999; Castles Chapter 1). Until recently, this plight has been largely ignored. Currently a number of initiatives which can be described as ‘new’ regional approaches are under way attempting to alleviate the plight of refugees living in protracted refugee situations in Africa and to define the role of transit countries. These are consistent with the UNHCR’s Convention Plus and Agenda for Protection to which we now turn.

New regionalism: UNHCR’s Convention Plus and Agenda for Protection In late 2000 the UNHCR launched the Global Consultations on International Protection to engage states and others in a dialogue in support of the fifty year-old Refugees Convention. The Convention Plus and the Agenda for Protection which arose out of this process reassert the importance of the international regime of refugee protection. These instruments refer to ‘old’ regional agreements and purport to offer new insights based on the traditions established by them. For example, the Declaration of State Parties accompanying the Agenda for Protection (UNHCR 2002) specifically refers in paragraph 3 of the preamble to the importance of the OAU and the Cartagena Declaration. The high commissioner introduced the concept of Convention Plus in his forward

Introduction: Regionalism as a Response to a Global Challenge | 19

to the Agenda. Whilst not referring to the CPA as such, he referred to its recognisable elements and expanded upon them. He explained: The ‘plus’ concerns the development of special agreements or multilateral arrangements to ensure improved burden sharing, with countries in the North and South working together to find durable solutions for refugees. This includes comprehensive plans of action to deal with mass outflows, and agreements on ‘secondary movements’, whereby the roles and responsibilities of countries of origin, transit, and potential destination are better defined. It also includes agreements aimed at better targeting development assistance in refugees’ regions of origin, and multilateral commitments for resettlement of refugees. (UNHCR 2002)

The main differences between the CPA and Convention Plus are the references to cooperation between northern and southern countries and ‘targeting development assistance in refugees’ regions of origin’. Convention Plus and the Agenda for Protection clearly place refugee issues within the paradigm of development. Convention Plus also has a strong emphasis on formulating plans, such as the 2004 Plan of Action to Enhance Refugee Protection in Latin America referred to above. These are examples of ‘new’ regional approaches. The Agenda for Protection has six inter-related goals of which the following five are the most relevant to our discussion: • strengthening implementation of the 1951 convention and 1967 protocol; • protecting refugees within broader migration movements; • sharing burdens and responsibilities more equitably and building capacities to receive and protect refugees; • addressing security-related concerns more effectively; • redoubling the search for durable solutions for refugees. The theme of burden-sharing runs throughout the entire Agenda. These goals reflect lessons learnt from the experience of the OAU Convention, the Cartagena Declaration, and above all the CPA. The first goal recognizes that complementary refugee definitions and agreements as provided by the OAU Convention and the Cartagena Declaration are not a panacea for refugee protection. The second reflects the experience of the CPA with its ‘mixed flows’. The third which is perhaps the most

20 | New Regionalism and Asylum Seekers

important for our purpose, reflects the collective experiences of the three regional agreements. It recognises the need for a responsible approach to burden-sharing and, like Convention Plus, encourages states to enter into specific agreements. However the UNHCR has independently clarified that states should not refuse to grant asylum in the absence of such agreements (UNHCR 2004c). Additionally the third goal includes the objectives of incorporating refugee issues within national, regional and multilateral development agendas and using resettlement more effectively as a tool of burden-sharing. The fourth (security concerns) is particularly a problem in Africa (see Shaw, Chapter 8) and Latin America. The CPA demonstrates the importance of the fifth goal (the search for durable solutions for refugees); international collective agreements to resolve regional crises do not automatically lead to better solutions. These instruments demonstrate that the UNHCR has broadened its thinking about ‘regionalism’ since the 2000 Note on International Protection, quoted at the beginning of this chapter. In its 2003 Note on International Protection, (UNHCR 2003: paragraph 3) it critiqued ‘a strong tendency towards harmonization at the lowest common denominator in the development of regional asylum systems’. As the 2004 General Conclusion (also quoted above) and Convention Plus illustrate, it recognizes the value of both responses at the national and regional levels as well comprehensive approaches. Recently a number of initiatives both of the EU as an aspect of its external programme (see van Selm Chapter 4) and of the UNHCR have been introduced to build upon the Agenda for Protection. For example, the UNHCR is engaged in a ‘gaps analysis’ to identify specific development assistance needs in specific regions and has urged states to target particular regions for this purpose. It has initiated a project named ‘Institution-Building in North Africa’ which is intended to gather evidence about the nature of the migration movements into that region. Under the Strengthening Protection Capacity Project (SPCP), the UNHCR is involved in a development project in Tanzania. It has also developed a Comprehensive Plan of Action for Somalia. The EU is assisting the UNHCR to finance some of these projects, such as the SPCP. In line with the new emphasis on development, the UNHCR has joined the United Nations Development Group (UNDG) and drafted a Guidance Note on Durable Solutions for Displaced Persons (October 2004). These projects relate to specific regions rather than involving comprehensive plans on the CPA analogy. The Mediterranean crisis (see Chapter 4), which involves multi-parties along the lines of the IndoChinese crisis of the 1980s is the most likely candidate for a comprehensive solution. But for the time being, it is being addressed by a

Introduction: Regionalism as a Response to a Global Challenge | 21

number of separate strategies. For example, the UNHCR is giving priority to formulating agreements with Mediterranean states on protocols for rescue at sea, interdiction and exclusion. The EU has entered into bilateral relations with transit border countries who are affected by the Mediterranean crisis (see Chapter 4). There have also been discussions arising from the Hague Programme on establishing joint processing of asylum seekers either within the EU or in countries in North Africa outside the EU. Although there are no concrete proposals at present, this idea is very much on the EU agenda. Moreover, as part of its new external focus, the European Parliament proposes the establishment of Regional Protection Programmes18 (RPPs). RPPs are intended to comprise two main elements: measures to enhance the protection capacity of areas close to refugees’ regions of origin; and a joint EU resettlement programme. This summary of recent EU and UNHCR initiatives demonstrates the contemporary significance of ‘regionalism’ in the context of asylum seekers and refugees. One of the challenges of ‘new regionalism’ is to formulate ‘joined up’ proposals which provide comprehensive solutions. It will also be necessary to avoid the mistakes of the past, in which regionalism has often coincided with national or state self-interest, and protectionism. The Convention Plus and the Agenda for Protection proposals attempt to build upon the past by a providing ‘new’ impetus for both regional and global cooperation. We turn now to examining specific regional experiences to assess the challenges that lie ahead.

Notes 1. The point is made explicitly in J. Hathaway, 1990. ‘A Reconsideration of the Underlying Premise of Refugee Law’, Harvard International Law Journal, 31: 129. 2. At this time the refugees were largely settled within other ‘European’ countries although some went to other Western countries such as Canada, Australia and the U.S.A. Within Europe, the movement was predominantly from eastern to western Europe (Barnett 2002: 243). 3. Entered into force on 22 April 1954. 4. Entered into force on 4 October 1967. 5. Entered into force on 20 June 1974. 6. The expanded definition of ‘refugee’ in Article I(2) underscores this point. 7. Rankin challenges the interpretive ‘myths’ surrounding the OAU Convention, namely that it does not involve a ‘subjective’ assessment of the individual’s ‘compulsion’, and that it is intended to cover group displacements.

22 | New Regionalism and Asylum Seekers

8. OAS/Ser.L/V/II.66,doc.10, rev.1, pp. 190–3. 9. E.g., the 1994 San Jose Declaration, 5–6 December 1994, ACNUR/IIDH, 1995. 10. Statement by Gerald Walzer, UN Deputy High Commissioner for Refugees in San Jose, Costa Rica, 5 December 1994 to mark the tenth anniversary of the Cartagena Declaration, UNHCR Refugee Magazine Issue 99 (Regional solutions) – the Cartagena Declaration Retrived on 6 November 2005 from http://www.unhcr.ch/. 11. International Conference on Indo-Chinese Refugees, Geneva, 13–14 June 1989: Declaration and Comprehensive Plan of Action, UN Doc A/CONF. 148/2, 13 June 1989. 12 Miniser for Immigration v Mok (1995) 55 FCR 375 concerned statements made by the then Prime Minister and the Minister for Immigration that Cambodian boat people were ‘economic refugees’. 13. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, p. 27. 14. R. Mushkat. 1993. ‘Implementation of the CPA in Hong Kong’, International Journal of Refugee Law, 5, (4): 562 at ftn 18. See for example, Lawyers Committee for Human Rights, ‘Hong Kong’s Refugee Status Review Board: Problems in Status Determination for Vietnamese Asylum Seekers,’ March 1992. 15. Draft Declaration and Comprehensive Plan of Action, approved by preparatory meeting for the International Conference on Indochinese Refugees, 8 March 1989. 16. UNHCR, Geneva Briefing Book 2000–2001. 17. UNHCR, Geneva Briefing Book 2000–2001. 18. COM (2005) 388 final, 1 September 2005.

References Arboleda, E. 1991. ‘Refugee Definition in Africa and Latin America: the Lessons of Pragmatism’, International Journal of Refugee Law, 3: 185. Barnett, L. 2002. ‘Global Governance and the Evolution of the International Refugee Regime’, International Journal of Refugee Law, 14: 238. Bronée, S.A. 1993. ‘The History of the Comprehensive Plan of Action’, International Journal of Refugee Law, 5: 534. Chandra, A.C. 2004. ‘Indonesia’s Non-State Actors in ASEAN: A New Regionalism Agenda for Southeast Asia?’, Contemporary Southeast Asia, 26, (1): 155–74. Crisp, J. 2003. ‘No Solutions in Sight: the Problem of Protracted Refugee Situations in Africa’ UNHCR, New Issues in Refugee Research, Working Paper No. 75. De Andrade, J. H. F. 1998. ‘Regional Policy Approaches and Harmonization: A Latin American Perspective’, International Journal of Refugee Law, 10: 389. Feller, E. 2001. ‘The institute for global legal studies inaugural colloquium: the UN and the protection of human rights: the Evolution of the International Refugee Protection Regime’, Washington University Journal of Law & Policy, 5: 129.

Introduction: Regionalism as a Response to a Global Challenge | 23

Goodwin-Gill, G. 1996. The Refugee in International Law, 2nd ed., Oxford: Clarendon Press. Gottwald, M. 2004. ‘Protecting Colombian Refugees in the Andean Region: the Fight Against Invisibility’, International Journal of Refugee Law, 16: 517. Hathaway, J.C. 1984. ‘The Evolution of Refugee Status in International Law: 1920–1950’, International and Comparative Law Quarterly, 33: 348. ———. 1990. ‘A Reconsideration of the Underlying Premise of Refugee Law’, Harvard International Law Journal, 31: 129. ———. 1993. ‘Labelling the “Boat People”: The Failure of the Human Rights Mandate of the Comprehensive Plan of Action for Indochinese Refugees,’ Human Rights Quarterly, 15: 686–702. Helton, A.C. 1999. ‘Securing Refugee Protection in the Americas: the InterAmerican System on Human Rights and the Rights of Asylum Seekers’, Southwestern Journal of Law and Trade in the Americas, 6: 129. Hettne, B. 1996. ‘Globalization, the New Regionalism and East Asia’ in T. Tanaka and T. Inoguchi, Globalism and Regionalism. Selected Papers Delivered at the United Nations University 2–6 September, Hayama, Japan. International Conference on Central American Refugees (CIREFCA), Guatemala City, 29-31 May 1989: Declaration and Concerted Plan of Action in Favour of Central American Refugees, Returnees and Displaced Persons CIREFCA/89/14, 31 May 1989 (originally published in Spanish). Mason, Sir. A. 2001. ‘The Decline of Sovereignty: Problems for Democratic Government’, in C. Sampford and T. Round (eds), Beyond the Republic: Meeting the Global Challenges to Constitutionalism, Australia: Federation Press. Mushkat, R. 1993. ‘Implementation of the CPA in Hong Kong’, International Journal of Refugee Law, 5, (4): 562. Nichols, A. and P. White. 1993. Refugee Dilemmas: Reviewing the Comprehensive Plan of Action for Vietnamese asylum seekers, LAWASIA, Human Rights Committee. Okoth-Obbo, G. 2001. ‘30 Years On: A Legal Perspective of the 1969 OAU Convention Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, Refugee Survey Quarterly, 20, (1): 81. Rankin, M.B. 2005. ‘Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee Definition Thirty Years On’, UNHCR, New Issues in Refugee Research, Working Paper No. 113. Report from the Senate Standing Committee on Foreign Affairs and Defence. 1982. Indochinese Refugee Resettlement – Australia’s Involvement, Canberra: Australian Government Publications. Robinson, W.C. 2004. ‘The Comprehensive Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’, Journal of Refugee Studies, 17: 319. Rutinwa, B. 1999. ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’, New Issues in Refugee Research Working Paper no. 5 – Refugee Studies Programme, Oxford. Schloenhardt, A. 2000. ‘Australia and the Boat-People: 25 Years of Unauthorised arrivals’, UNSW Law Journal: 23 (special issue): 3: 35.

24 | New Regionalism and Asylum Seekers

Tran, Y. 1995. Comment, ‘The Closing of the Saga of the Vietnamese Asylum Seekers: The Implications on International Refugees and Human Rights Laws’, Houston Journal of International Law, 15: 463. Tuepker, A. 2002. ‘On the Threshold of Africa: OAU and UN Definitions in South African Asylum Practice’, Journal of Refugee Studies, 15: 409. Turner, J.L. 1994. ‘Liberian Refugees: A Test of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’, Georgetown Immigration Law Journal, 8: 281. UNHCR. 2000. The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action, Oxford: Oxford University Press. ———. 2000–2001. Geneva Briefing Book, Retrieved on 20 November 2003 from http://www.genevabriefingbook.com/chapters/unhcr.html. ———. 2002. Agenda for Protection A/AC.96/965.Add.I, 26 June 2002. ———. 2003. Note on International Protection, 54th session, 2 July 2003. ———. 2004a. General Conclusion on International Protection, (No. 99 (LV) – 2004). ———. 2004b, Refugees by Numbers (2004 edition) Retrieved on 15 July 2005 from http://www.unhcr.ch/. ———. 2004c. Conclusion on International Cooperation and Burden and Responsibility sharing in Mass Influx Situations, (No. 100 (LV) – 2004). ———. 2005. ‘Oral Report on Implementation of the Agenda for Protection’, Ms. Erika Feller, Director, Department of International Protection, UNHCR, 32nd Meeting of the Standing Committee (Geneva, 9 March 2005), Retrieved on 3 November 2003 from http://www.unhcr.ch/. Wheeler, S.M. 2002. The New Regionalism: Key Characteristics of an Emerging Movement’, Journal of the American Planning Association, 68, (13): 267–79. Wilding, P. 1997. ‘Globalization, Regionalism and Social Policy’, Social Policy & Administration, 31, (4): 410–28. Treaties and Conventions Cartagena Declaration on Refugees 1984 Convention Governing the Specific Aspects of Refugee Problems in Africa 1969

1 The Migration–Asylum Nexus and Regional Approaches Stephen Castles

Introduction Migration has been a hot political topic in Europe since the mid-1980s. Much of the public polemics has been about so-called ‘phoney asylum seekers’ – people who apply for refugee status but are accused by the media and politicians of really being economic migrants. Government policies on migration control are based on the principle of separating clearly between economic migrants and forced migrants. Different legal and institutional regimes exist for the two categories at both the international and national levels: rights to entry and residence vary considerably, as do economic and social entitlements. However, it has become increasingly difficult to separate the two groups in practice. Governments and international bodies have tried to address this through a range of measures, concerned not only with entry control, but also with the situation in countries of origin and transit. Recent discussions have emphasized the need for regional cooperation on migration control and ‘regional protection’ for forced migrants. This chapter will discuss the reasons why it has become impossible to neatly separate between refugees and asylum seekers. Moreover, it will argue that this distinction has never been as complete as its proponents believe, and that the present preoccupation with such categories is the result of specific (and fairly new) contradictions between economic and political objectives. To understand this requires a political economy analysis of the factors behind changing patterns of conflict and displacement – a task that can only be addressed very cursorily here. The

26 | New Regionalism and Asylum Seekers

main markers of change have been the end of the Cold War, the emerging global dominance of a single superpower, economic globalization, shifting patterns of conflict in post-colonial regions, and, more recently, the ‘securitisation of asylum’ following the events of 11 September 2001. These factors reshape North-South relations,1 and are global in scope. But if the key unit of analysis for the political economy of migration is global, specific patterns of mobility tend to be constituted at regional and national levels. The same goes for political responses, although, as this book argues, there are trends towards cooperation at the regional level.

What is the migration–asylum nexus? The blurring of the distinction between economic and forced migration is often referred to as the migration–asylum nexus. It exists at all stages of the migration chain: • Countries with weak economies, increasing inequality and widespread impoverishment tend also to have tyrannical rulers, weak state apparatuses, and high levels of violence and human rights violations. Thus the conditions that cause economic migration are closely linked with those that cause forced migration, leading to the migratory movement of people with ‘mixed motivations’. • In the mobility process, both economic migrants and asylum seekers tend to follow the same routes and use the same mechanisms for mobility. • On arrival they rely on networks (based on compatriots who have moved earlier) to find jobs and accommodation and to negotiate bureaucratic obstacles. • The very measures that receiving countries use to deter asylum seekers and to keep out unwanted economic migrants may reinforce the migration–asylum nexus by forcing asylum seekers to use people smugglers to gain entry and to survive once in the country. Preoccupation with the migration–asylum nexus in politics and social science is fairly new and is related to the upsurge in asylum migration since the mid-1980s, yet interlinked causes and multiple motivations have a long history. Were the Irish, who went to England and America in the nineteenth century to escape famine and poverty, forced migrants or

The Migration–Asylum Nexus and Regional Approaches | 27

economic opportunity seekers? What about the Jewish migrants who sought refuge from Russian pogroms in New York City? European ‘displaced persons’ who were shipped to Australia and Canada in the 1940s were clearly refugees, yet they were welcomed because their labour was needed to build new industries in sparsely populated lands. It seems that the concern with separating refugees and economic migrants only arises when receiving countries want to differentiate between those they consider to be desirable and undesirable entrants, in order to better control them. The migration–asylum nexus is thus a discourse that is used to meet certain economic, political or ideological objectives. The term, as used by policy makers and opinion leaders, is an aspect of ‘knowledge–power relations’ in the Foucauldian sense (Foucault 1977: 27). It is expressed largely through legal rules that define migration categories and assign people to them, but these rules are subservient to non-legal objectives. A political economy analysis of the migratory process is needed to demystify the nexus, and to show why economic and forced migration are so closely linked in the current global order. Law is a crystallization of historical relations of political and economic power. Migration law, as it concerns movements across state borders, expresses power relations and interest constellations between nation states. That understanding helps us to analyse the very uneven treatment of migration in international law. Only one type is covered by an elaborated legal regime: the movement of refugees as defined by the 1951 Refugees Convention2 and its 1967 protocol.3 The implementation of this convention is overseen by a major international institution: the Office of the United Nations High Commissioner for Refugees (UNHCR). At the national level, a range of special tribunals, appeal mechanisms and administrative arrangements have been developed to administer the refugee regime. In addition there is a large range of NGOs dedicated to assisting refugees and safeguarding their human rights. The Refugees Convention was a Eurocentric instrument, designed to resolve issues connected with the aftermath of the Second World War and the incipient Cold War. At its centre is a narrow definition of eligibility, based on individual persecution of specified types (Loescher 2001). With the emergence of situations of generalized conflict and mass flight resulting from colonial liberation wars – which often metamorphosed into proxy wars between the Cold War superpowers – the application of the Refugees Convention became highly problematic. The Western powers, which saw the convention as a mechanism for welcoming anti-communist ‘freedom fighters’, never wanted to extend the same hand to people fleeing violence and repression in Africa, Asia and Latin America (Chimni 1998; Keely 2001). Governments and civil society organisations in the

28 | New Regionalism and Asylum Seekers

South, by contrast, saw the need to develop instruments to broaden the refugee regime to take account of mass flight, notably through the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention)4 (see Introduction to this volume) and the Latin American Cartagena Declaration on Refugees adopted at a Colloquium held at Cartagena, Colombia in November 1984,5 (the Cartagena Declaration) (UNHCR 2000: 55, 123). Western disenchantment with the Refugees Convention increased in the 1980s and 1990s. The escalation of new types of warfare not only in the South but also in the remnants of the Soviet Empire and Former Yugoslavia involved high levels of violence against civilian populations by both government and insurgent forces. At the same time, the increasing ease of long-distance travel and the existence of networks based on previous migration from some of these regions led to a rapid growth in asylum migration from the mid-1980s. Northern politicians took steps to reduce asylum seeker flows through legal (and in Germany even constitutional) changes. The right to seek asylum laid down in the Refugees Convention was much reduced in practice, and politicians began to talk about its ‘irrelevance’ and the need to rewrite it. The key point here is that an international legal regime to protect and assist refugees does exist, while such a regime is largely absent both for other types of forced migrant and for economic migrants. By the start of 2005 the number of refugees recognised by UNHCR6 had fallen to 9.2 million – the lowest level for twenty years. UNHCR also took responsibility for 19.2 million ‘persons of concern’ (including refugees, some internally displaced persons and returnees – 13 per cent up on the previous year) (UNHCR 2005). However, much larger categories of forced migrants were not covered, notably some 25 million internally displaced persons (IDPs) forced from their homes by violence, of whom 13 million were in Africa (Global IDP Project 2005), as well as many millions displaced by development projects (Cernea and McDowell 2000) and natural or human-made disasters. The latter are left largely to national regulation, while for conflict-induced IDPs there is only a weak and fragmented international response, expressed through the largely voluntary Guiding Principles for Internally Displaced Persons and a number of small, non-operational agencies (Castles and Van Hear 2005: 73–8; Martin 2004). The governance deficit is even more pronounced for economic migration. In most areas of globalization there have been strong tendencies towards global governance: for example, the International Monetary Fund (IMF) and the World Bank for finance and the World Trade Organisation for trade. Migration, by contrast, has been seen as a

The Migration–Asylum Nexus and Regional Approaches | 29

preserve of national sovereignty. The international community has failed to build institutions to ensure orderly migration, protect the human rights of migrants, match up supply and demand for specific types of labour, and maximise development benefits. Major elements of an international framework do exist in ILO Conventions No. 97 of 1949 and No. 143 of 1975, and in the 1990 United Nations Convention on the Rights of Migrant Workers and Members of their Families. However, relatively few countries have ratified these instruments, and their practical effects are very limited. The main obstacle is the reluctance of immigration countries to agree to any arrangements that would raise the costs of migrant labour for employers. At least since the UN Cairo Population Conference of 1994, emigration countries have demanded more protection of their citizens as well as measures to control the brain drain and to link migration to development. However, in a situation of global over-supply of labour (especially of the lower skilled), labour-importing countries have used their market power to hinder international collaboration with sending countries.7 On the other hand, migrant-receiving countries are very keen to cooperate to restrict and control entries (see Ghanea, Chapter 5 in this volume). The European Union (EU) has taken the lead in setting up an area of internal free movement combined with strict external control. This cooperation mainly focuses on measures to prevent arrivals (visa rules, carrier sanctions and safe third country rules); to deter asylum seekers and undocumented migrants (detention, rapid processing, prohibitions on work and welfare restrictions); and to speed up returns (accelerated deportation and re-admission agreements with countries of origin). Since the early 1990s European politicians have repeatedly stressed the need to address the ‘root causes’ of South–North migration. But actual policies have been very low key. For instance, in the late 1990s, the efforts of the EU’s High Level Working Group on Asylum and Migration proved quite unsuccessful, due to the failure to consult governments of origin countries and the one-sided emphasis on migration control (Castles et al. 2003). Attempts to contain migrants in the South took on new impetus in the early 2000s, as will be discussed below. Apart from highly skilled migrants who enjoy special entry rules, applying for refugee status is often the only legal way for people from developing countries to gain residency status in European, or other developed, countries. Yet demographic change and economic pressures make low-skilled economic migrants increasingly necessary for such sectors as agriculture, catering, health services and aged care. The political message to prospective migrants that they are not welcome is contradicted by the economic message that jobs are there for those who do

30 | New Regionalism and Asylum Seekers

get in. This political message is based on fears generated for mainstream politicians by hostile media and the success of extreme-right antiimmigration groups. At the same time, governments understand the need to import labour if certain sectors are to remain viable. Hence the evolution of hypocritical policies that claim to be stopping low-skilled migration, whilst tacitly creating side and back doors for it (Castles 2004). At the same time, the climate of restrictiveness pushes forced and economic migrants into the same migratory patterns. Refugees may be legal residents once recognized, but there is no longer any real chance of getting in legally to apply for such status. Asylum seekers have to enter illegally, just like undocumented workers. Increasingly, both groups are dependent on people smugglers. In response, European governments tend to treat all asylum seekers as potential criminals. With diminishing chances of gaining refugee status, however strong their claims, many asylum seekers may find it safer and easier to remain underground and take undocumented employment. In official parlance, they become ‘category jumpers’. In the same way, undocumented workers may become asylum seekers, where they think this may give them a chance of gaining legal residence. As already indicated above, this blurring of the distinction between economic and forced migration is nothing new. Europe has its own quite recent examples. Large numbers of Portuguese migrants came to France in the 1950s and 1960s. Many were refugees from the Salazar dictatorship, and they used people smugglers to enter France illegally. Once there, they were treated as workers and regularized quite quickly (Castles and Kosack 1973: 34–5). A somewhat different case was that of Turks in Germany: they came as workers under the ‘guestworker’ system of the 1960s and early 1970s. When recruitment was stopped in 1973, migration continued in the form of family reunion, undocumented labour migration and asylum applications, the latter a result of increasing political conflict and the military coup of 1980 (Castles, Booth and Wallace 1984: 74–5).8 The point is that a migratory flow, once established, develops its own social dynamics and is likely to continue even if official policies change. The French case was not seen as problematic at the time, since there was strong demand for labour, while the German one was, since it coincided with growing unemployment. The vagaries of government policies, which are often very short-term in their aims and approaches, can prove weaker than the transnational forces that sustain migration. To some extent, therefore, the migration-asylum nexus is a self-fulfilling prophecy: by ignoring the fundamental causes of migration and treating all entrants with suspicion and restrictiveness, governments themselves help to erode the distinction between economic and forced migrants, which is a cornerstone of their policies.

The Migration–Asylum Nexus and Regional Approaches | 31

Notes for a political economy of forced migration The discourse on the asylum–migration nexus is essentially concerned with South–North movements. In the past, migration experts used to stress that most migration took place between countries of similar economic levels, usually within the same geographical region (Zlotnik 1999). This is no longer the case, as Table 1.1 shows. Table 1.1: Stock of international migrants by major area 1960–2000 Number of international migrants (millions)

Major area World Developed countries Developing countries

International Distribution migrants as by major percentage of area population

1960 75.9 32.1

1970 81.5 38.3

1980 99.8 47.7

1990 154.0 89.7

2000 1960 174.9 2.5 110.3 3.4

43.8

43.2

52.1

64.3

64.6 2.1

2000 2.9 8.7 1.3

1960 2000 100.0 100.0 42.3 63.1 57.7

36.9

Source: United Nations Department of Economic and Social Affairs. 2004. World Economic and Social Survey 2004: International Migration. New York: United Nations.

Not only has the number of international migrants9 grown very rapidly in recent times (from 82 million in 1970 to 175 million in 2000) but increasingly they move from developing to developed countries. In 1970, there were 43 million migrants living in developing countries compared with 38 million in the developed world. By 2000, the relationship was reversed: 110 million in developed countries but only 65 million in developing countries. In 2000, 63 per cent of the world’s migrants were in developed countries, where they made up 8.7 per cent of the total population; only 37 per cent were in developing countries, where they made up 1.2 per cent of the (much larger) total population (United Nations Department of Economic and Social Affairs 2004). This trend has given rise to large concentrations of immigrants and to unprecedented cultural and religious diversity in northern cities. The relative increase in South-North forced migration is even greater. According to UNHCR figures, there were only 2.4 million refugees in 1975.10 With the end of the Cold War, refugee numbers rose rapidly to peak at 17.8 million in 1992 – a mix of southern refugees from post-

32 | New Regionalism and Asylum Seekers

colonial struggles, and eastern ones from the break-up of Yugoslavia and the Soviet Bloc. Since then, refugee numbers have declined, due to a combination of entry restrictions in the North and the resolution of some major conflicts in both East and South. By 2005 refugee numbers were at their lowest level for twenty years at 9.2 million. Today the overwhelming majority of refugees originate in the poorest countries of the South. Most of them find refuge in neighbouring countries, which are often equally poor and vulnerable to conflict. But enough move on to ensure that most refugees and asylum seekers arriving in Western Europe are from Africa and Asia (Castles and Van Hear 2005: Chapter 2 for detailed data). Thus the central task in studying the migration–asylum nexus is to examine the forces that drive South-North migration and determine the various forms it takes. This requires a political economy analysis of the role of migration in the global economic and political order, a task that clearly cannot be completed here. The points that follow are a brief attempt to suggest some elements of such a political economy.

Social transformation in the South The changes that give rise to mass emigration from the South are linked to two main features of the current epoch: economic globalization and the emergence of a political order based on the dominance of a single superpower. Penetration of southern economies by global capital leads to marginalisation of existing forms of production and their replacement by new modes of production linked to global supply chains. This means that globalisation brings about vast increases in inequality and human insecurity. Some parts of the South, especially in Africa, have been largely disconnected from the global economy and experience severe declines in employment levels and GDP per capita, while some new industrial countries, especially in Asia, enjoy growth in employment and incomes. Certain elites in the South gain from their role in the transnational circuits of capital accumulation, but impoverishment is on the increase overall. Matters are even worse in the many countries where economic liberalization has been linked to structural adjustment programmes imposed by the IMF and other multilateral financial institutions. These require privatization of public resources (such as water) and cuts in welfare, health and education programmes. Thus globalization means profound transformation of societies. This is now recognized even by leading liberal economists, like Stiglitz, who argues that ignorance of this connection on the part of the IMF and similar bodies led to failures, which ‘have set back the development agenda, by unnecessarily corroding the very fabric of society’ (Stiglitz 2002: 76–7). The victims of these radical

The Migration–Asylum Nexus and Regional Approaches | 33

changes may well see migration as the only way out. Sometimes this initially takes the form of rural–urban migration and continues with international migration when local labour markets are unable to absorb the many job seekers. Discontent with growing impoverishment and inequality has been contained through the political, military and ideological hegemony of a single superpower (Castles 2005). U.S. dominance provides the strategic stability needed to protect the interests of multinational corporations and to provide a favourable environment for global market forces. Economic rivals (like China, India and Europe) remain dependent on U.S. military might, and increasingly accept the cultural dominance of liberalism and the American way of life. States and groupings that contest this model can be defined as ‘rogue states’ and ‘terrorists’, and are subjected to military threats or actual invasion. The United States and its northern allies dominate the organs of global governance, imposing one-sided rules on trade, finance and intellectual property. Such rules force liberalization on the South, while permitting northern states to support their own producers, often leading to crisis and impoverishment in the South. For instance, U.S. subsidies to cotton farmers undercut the ability of West African smallholders to compete in the international market, leading some to give up and migrate to Europe. Similarly, the EU’s Common Agricultural Policy is allowed to subsidize farmers and dump produce in the South in violation of liberal principles (Oxfam 2002; Stiglitz 2002). This global political and military order also drives the increase in violence and forced migration. Situations of conflict, generalized violence and mass flight emerged in the Third World from the 1960s, in the context of struggles over decolonization and state formation (see Introduction in this volume). Local conflicts became surrogate wars of the East–West conflict, with the superpowers providing modern weapons to their protégés, but also putting limitations on conflict through tacit agreement on zones of domination. Violence escalated with the end of the Cold War, due to the inability to achieve development and to build stable states in large areas of the South. International warfare was largely replaced by internal wars connected with ethnic divisions, problems of state formation and competition for economic assets. The means of warfare have also changed. The protagonists are no longer large standing armies but irregular forces. The aim is not control of territory, but political control of the population. Ninety per cent of those killed are civilians. Both government forces and insurgents use exemplary violence including torture and sexual assault as a means of control. Systematic persecution and ethnic cleansing have become weapons of war, leading to mass movements of refugees (Duffield 2001; Kaldor 2001; Summerfield 1999).

34 | New Regionalism and Asylum Seekers

So far I have discussed macro-social forces, that affect North–South relations at a general level. But global forces take on differing forms and have varying impacts in specific localities. A political economy of migration must also include micro-level studies to analyse political and economic aspects of conflict and change, and how these combine to affect patterns of power and vulnerability in specific societies. For example, Collinson and her co-authors use the methodologies of commodity chain analysis and livelihoods analysis to reveal the forces behind some recent major conflicts. One case study examines how the local and global dynamics of trade in coltan drive the war economy in the eastern Democratic Republic of Congo. Further studies, using ethnographic and participatory methods, deal with conflict commodities and livelihood strategies of conflict-affected populations in Sierra Leone, Senegal and Afghanistan (Collinson 2003). This type of research is needed in situations of social transformation, not only to understand the dynamics of change and conflict, but also to guide humanitarian and development interventions. As Duffield has argued, globalization has meant the disconnection of some areas of the South from the global economy, but such regions may reconnect with the North through borderless markets and the proliferation of transnational networks. The very mechanisms which make multinational corporations so powerful have also been taken up by international crime, the drug trade and terrorist groups (Duffield 2001). More benign forms of transnationalism, notably the networks that facilitate the movement of both forced and economic migrants, follow the same transnational logic. Thus northern governments are increasingly coming to understand that underdevelopment and internal warfare are threats to security in the North. Until recently, their solution was to work together to erect barriers against unwanted mobility. But, since globalisation and North–South inequality actually create the conditions that encourage and facilitate migration, control measures have had very limited success. As Bhagwati has pointed out: ‘Paradoxically, the ability to control migration has shrunk as the desire to do so has increased’ (Bhagwati 2003). Perhaps one of the few good things to come out of the increase in terrorism in the new millennium is the realization that massive impoverishment and human insecurity in the South have to be addressed. The pledges on debt relief and increased foreign aid of the 2005 G8 Summit are, at last, a step in the right direction. It remains to be seen whether they will be implemented.

The Migration–Asylum Nexus and Regional Approaches | 35

Economic restructuring and demographic change in the North Globalization has meant social transformation in the North as well as the South, radically changing the context for international migration. The mass recruitment of foreign workers for manufacturing industries in Western Europe, North America and Oceania from 1945 to 197411 established migratory patterns and laid the foundations for multi-ethnic populations in the North. When recruitment was stopped in the 1970s, migratory flows continued (against the expectations of policy makers), but changed in character. Major manufacturing companies shifted their investment away from northern countries and set up new plants in the South, especially in East and South-east Asia and parts of Latin America. Low wage levels were the main attraction of these areas. Such processes were encouraged by southern governments through the creation of offshore investment zones offering infrastructure, tax concessions and tight labour discipline. These newly industrializing countries became regional poles of attraction for migrant labour. At the same time, the recycling of petrodollars funded vast construction projects in oil-rich nations, also pulling in millions of migrant workers. Northern economies were restructured: assembly-line manufacturing and the industries that supported it (coal, steel, etc.) were closed down, while high-productivity sectors such as financial and business services, research and development, management, media and education became concentrated in the North. The transformation of work was widely heralded: low-skilled routine factory labour would be replaced by skilled employment for people with high levels of education and autonomy in clean new workplaces. Low-skilled migrant workers would no longer be needed, while the international circulation of the highly skilled was to be encouraged. In fact, things turned out rather differently. The new ‘global cities’ did attract qualified people from all over the world, but they also needed hosts of low-skilled workers to provide for basic needs: cleaners, catering workers, health sector employees, builders, agricultural labourers, garment workers and so on (Sassen 1988). At the same time, the decline in birth rates, especially in Western and southern Europe, meant that internal labour reserves for such jobs dwindled (UN 2000). Northern economies needed migrant labour of all kinds, but governments found it increasingly difficult to secure popular support for immigration. This was attributable to the economic and social consequences of the restructuring process. The decline of ‘rustbelt industries’ meant unemployment, deskilling and insecurity for blue-collar workers. De-

36 | New Regionalism and Asylum Seekers

industrialization led to the decay of working-class towns and neighbourhoods, resulting in poor housing and amenities, rising rates of crime, drug-addiction and family breakdown. Such changes were accompanied by a casualization of employment, a growth in part-time work and a decline in job security throughout the labour force. Simultaneously, governments influenced by neo-liberal ideologies set out to privatize public enterprises, deregulate labour markets and reduce social protection and welfare. In this situation, immigrants and their descendents served as visible symbols for globalization and as scapegoats for the threatening changes. Racism became a powerful political discourse, contributing to the resurgence of the far right throughout Europe. Thus immigrants were widely blamed for the crisis – at the very moment when European economies desperately needed new immigrants if they were to restructure effectively. At the same time, as discussed above, the exacerbation of North–South inequalities through globalization gave increasing impetus to both economic and forced migration. Globalization also brought improvements and cost reductions in transport and communications, making South–North movement easier than ever before. Popular opposition to migration has made it increasingly difficult for governments to manage these contradictions. Instead of comprehensive policies designed to ensure necessary labour flows and to protect the human rights of refugees and asylum seekers, we find ad hoc, rapidly changing and often contradictory sets of policies, designed to appease various political constituencies (Castles 2004). The political discourse of the migration–asylum nexus (and especially the notion of the ‘bogus asylum seeker’) is designed to give a public appearance of effective control. Containing forced migration in the South diverts attention from the reality of increasing migration, which is essential to meet economic and demographic needs in the North.

Regional responses Much of the world’s economic migration takes place within ‘migration systems’, which may be based on a single geographical region or may link neighbouring regions (Kritz et al. 1992). These generally link countries with surplus labour (due to a combination of fast demographic growth and slow economic growth) with countries with labour shortages (due to rapid economic growth and falling birth rates). Examples of regional migration systems include: South-east Asia, with flows of labour

The Migration–Asylum Nexus and Regional Approaches | 37

from Indonesia, the Philippines and Bangladesh to Malaysia and Singapore; Europe with flows from central and eastern Europe to Western and southern Europe; and North America with a mass movement from Mexico to the U.S. Migration systems linking neighbouring regions include South-east Asia to east Asia, North Africa to Europe and South America to the United States. Clearly, such systems can overlap. In addition, migration flows can cut across regional boundaries: such as China to Europe and the U.S. and sub-Saharan Africa to Europe. There is nothing new about extra-regional flows: they were important in European colonialism, and then in the nineteenth century westward expansion and industrialisation of the U.S.A. After 1945, some former colonial powers, notably Britain, France and the Netherlands encouraged long-distance flows of migrants from ex-colonies in order to meet immediate labour needs. Forced migration also often takes on regional dimensions, as in the cases of eastern European migration to Western Europe and Cuban migration to the United States in the Cold War. However, in the 1970s, Indo-Chinese refugees were resettled in the U.S.A., Europe and Australia principally due to the unwillingness of regional countries to bear the full burden of the aftermath of the Vietnam War. Today most refugees from wars in Africa, Asia and Latin America remain in neighbouring countries. Conflict and forced migration can reduce stability, worsen economic conditions and block development in both places of origin and places of refuge. Here too, regional boundaries are becoming more porous, as improved transport and the existence of migration networks make it easier for refugees to embark on ‘secondary migration’ to richer countries, where they hope not only to gain greater security but also improved livelihoods for their families. Globalization increases inter-regional flows of both economic and forced migrants. Governments, however, generally prefer intra-regional flows, probably because they find it easier to develop collaborative systems for controlling and managing migration at this level. When the (then) European Economic Community was set up in 1956, free movement of labour was one of its key elements. Free movement was a reality by 1968, and was later complemented by other measures, notably the introduction of European citizenship following the Maastricht Treaty of 1991.12 Other regional blocs have done less to introduce internal free movement. The North American Free Trade Area explicitly excluded migration, even though it had the unexpected effect of greatly increasing Mexico–U.S. migration. Policies to facilitate labour migration have been discussed within regional cooperation bodies in Asia, Latin America and Africa, but effective legal and institutional structures still seem a long way off.13

38 | New Regionalism and Asylum Seekers

European labour-importing countries hope that entries from outside the EU will be replaced by mobility within the expanded Union. This seems to have happened to some extent following the EU enlargement of 2004, but such effects may be of a short-term nature only, since Eastern and central Europe have low birth rates and limited labour reserves. In general, the European case shows the inherent difficulty of limiting migration to intra-regional flows. As the EU has developed, it has actively sought to even out economic and social disparities between member states, thus reducing the impetus to migrate. Intra-EU migration has tended to decline, and the great majority of Europe’s foreign residents come from outside the Union. Until recently, policies on third-country migration were left to the national sovereignty of member states. In May 2004 a set of common policies on asylum and migration were introduced, yet different European governments still take very different approaches to handling the contradictions of migration policy described above. Britain, for example, is tightening up asylum procedures and deportation rules, while establishing ‘side-doors’ for certain types of worker (for example, in catering and agriculture) and doing little to prevent illegal employment. Germany has set up temporary and seasonal recruitment systems, and does more to stop illegal employment, although often with little success in view of increasingly porous borders. Southern European countries barely recognize the right to asylum, but have tolerated large flows of undocumented workers, many of whom should really be seen as refugees. Italy’s right-wing government fulminates against illegal migrants, but recently carried out a mass legalization programme that nearly doubled the legal immigrant population. Spain’s socialist government has also sought to legalize its large undocumented worker population. Since the early 1990s, much of the thrust of European policies has been concerned with reducing asylum flows. Throughout this period, the overwhelming emphasis has been on improving border control, speedily rejecting most asylum claims and finding ways of quickly deporting failed asylum seekers. However, European policy makers have also shown awareness that successful long-term solutions to unwanted asylum flows depend on addressing the ‘root causes’ in countries of origin (Castles et al. 2003). In recent years, the European Commission, European states (especially Britain, the Netherlands and Denmark) and UNHCR have paid increased attention to the situation in regions of origin. There has been a new emphasis on finding ‘durable solutions’ to situations of conflict and exile and to preventing ‘unauthorised secondary migration’. These issues are dealt with in more depth in other chapters of this book and need not be detailed here (see Kneebone and Pickering, Chapter 8 in this volume).

The Migration–Asylum Nexus and Regional Approaches | 39

Conclusion The argument presented in this chapter implies that the concept of the asylum–migration nexus can be used in two ways. In the discourse of northern policy makers, in large segments of the media and in public opinion, the term is used to refer to allegedly false asylum claims by migrants who really seek to achieve economic objectives. As such, the migration–asylum nexus becomes a mechanism of knowledge-power, designed to legitimate draconian border control measures and rapid deportation, even to countries with poor human rights records. By contrast, as part of a critical political economy of migration, the concept of the migration-asylum nexus points to the blurring of the distinction between economic and forced migration. This blurring relates to the causes of migration: globalization, U.S. hegemony and growing North–South inequality give rise to failing economies, impoverishment, weak states, human rights abuse and violence. Complex and ongoing emergencies may cause people to move between migration categories: an economic migrant may become an asylum seeker or vice versa. Many South–North migrants thus have mixed motivations – they seek both protection and better livelihoods. They do not fit the Eurocentric categories of the refugee regime, making a clear distinction between economic and forced migrants at source impossible. Furthermore, northern border control measures that make it hard for refugees to make asylum claims may induce them to use people smugglers to cross borders, eroding the distinction between irregular migrants and asylum seekers. Deterrent measures designed to make life difficult for asylum seekers may discourage them from making asylum applications, and cause them to seek work as irregular migrants instead. Such factors have been poorly understood by governments. Migration policies based on neo-classical notions of individual decision-making and on national control models have often failed because they ignore the causes of migration and its dynamics as a transnational social process. The experience of the last fifteen years has shown that border restrictions alone are not sufficient. Just as Europeans were willing to endure danger and hardship to seek a better future in the New World a century ago, today’s poor and oppressed are prepared to take enormous risks to reach the North. As van Selm argues (see Chapter 4 of this volume), the key issue for the future of refugee protection is whether policy makers are willing to move from an ‘asylum policy’ essentially concerned with exclusion to a ‘refugee policy’ concerned not only with border control but also with addressing the fundamental causes of conflict and displacement. Unfortunately, the

40 | New Regionalism and Asylum Seekers

track record of northern governments in this area gives little cause for optimism. The main objective has always been to contain forced migrants in areas of origin, and to provide refugee status in developed countries to as few asylum seekers as possible. Despite the lip service paid to the Millennium Development Goals and the reduction of poverty in the South, the policies of powerful northern states and international institutions still do more to cause conflict and forced migration than to prevent them. Regional cooperation has as its focus exclusion. Only when (and if) such cooperation is refocussed on poverty reduction, conflict resolution and peace building can there be any hope of more equitable conditions of international migration.

Notes 1. In this chapter considerable attention is paid to South–North relations and migration. It should be emphasized that these terms are used to refer to economic and political – rather than geographical – configurations. There are enclaves of prosperity in the ‘Global South’ (as it is sometimes called) and areas of decline and social exclusion in the North. Nor are the areas monolithic or static, with some countries rapidly changing their standing – in both directions. 2. Entered into force on 22 April 1954. 3. Entered into force on 4 October 1967. 4. Entered into force on 20 June 1974. 5. OAS/Ser.L/V/II.66,doc.10, rev.1, pp. 190–3. 6. Mainly under the 1951 Refugees Convention, although UNHCR also takes account of the OAU Convention and Cartagena Declaration in its protection work. 7. In 2004, a Global Commission on International Migration (GCIM) mandated by the UN Secretary General took up its work. This is the most serious attempt yet to achieve better collaboration in the migration area. The GCIM is due to report in late 2005. At the time of writing it is too early to assess its recommendations and impact. 8. Such cases are not confined to Europe. For instance, the Acehnese in Malaysia and the Burmese in Thailand are classical example of refugees who are in many cases treated as undocumented migrant workers. 9. Defined as persons living for over a year outside their country of birth. 10. UNHCR figures exclude the largest refugee group, the Palestinians, since these are the responsibility of another UN agency, the Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). There are currently over 4 million refugees from Palestine. 11. The exact timing varied for different countries (see Castles and Miller 2003: Chapter 4).

The Migration–Asylum Nexus and Regional Approaches | 41

12. Treaty on European Union 1992 (consolidated text) OJ 2002 C 325/1 (24 December 2002), signed in Maastricht on 7 February 1992 and entered into force on 1 November 1993. 13. In Asia by the Association of Southeast Asian Nations (ASEAN) and AsiaPacific Economic Cooperation (APEC); in Latin America by the Southern Common Market (MERCOSUR) and in Africa by the Economic Community of West African States (ECOWAS).

References Bhagwati, J. 2003. ‘Borders Beyond Control’, Foreign Affairs, 82: 98–104. Castles, S. 2004. ‘Why Migration Policies Fail’, Ethnic and Racial Studies, 27: 205–227. ———. 2005. ‘Nation and Empire: Hierarchies of Citizenship in the New Global Order’, International Politics, 42: 203–224. Castles, S., H. Booth and T. Wallace. 1984. Here for Good: Western Europe’s New Ethnic Minorities. London: Pluto Press. Castles, S. and G. Kosack. 1973. Immigrant Workers and Class Structure in Western Europe. London: Oxford University Press. Castles, S., S. Loughna and H. Crawley. 2003. States of Conflict: Causes and Patterns of Forced Migration to the EU and Policy Responses. London: Institute of Public Policy Research. Castles, S. and M.J. Miller. 2003. The Age of Migration: International Population Movements in the Modern World. Basingstoke: Palgrave-Macmillan. Castles, S. and N. Van Hear. 2005. Developing DFID’s Policy Approach to Refugees and Internally Displaced Persons. Oxford: Refugee Studies Centre, University of Oxford. Cernea, M.M. and C. McDowell. 2000. Risks and Reconstruction: Experiences of Resettlers and Refugees. Washington DC: World Bank. Chimni, B.S. 1998. ‘The Geo-politics of Refugee Studies: a View from the South’, Journal of Refugee Studies, 11: 350–74. Collinson, S., (ed.). 2003. Power, Livelihoods and Conflict: Case Studies in Political Economy Analysis for Humanitarian Action. London: Overseas Development Institute. Duffield, M. 2001. Global Governance and the New Wars: The Merging of Development and Security. London and New York: Zed Books. Foucault, M. 1977. Discipline and Punish: the Birth of the Prison. Harmondsworth: Penguin. Freeman, A. 2004. ‘The Inequality of Nations’ in A. Freeman and B. Kagarlitsky (eds), The Politics of Empire: Globalisation in Crisis. London and Ann Arbor MI: Pluto Press. Global IDP Project. 2005. IDP Estimates Geneva: Global IDP Project, Retrieved on 5 January 2005 from www.idpproject.org/statistics.htm. Kaldor, M. 2001. New and Old Wars: Organized Violence in a Global Era. Cambridge: Polity.

42 | New Regionalism and Asylum Seekers

Keely, C.B. 2001. ‘The International Refugee Regimes(s): The End of the Cold War Matters’, International Migration Review, 35: 303–14. Kritz, M.M., L.L. Lin and H. Zlotnik. 1992. International Migration Systems: A Global Approach. Oxford: Clarendon Press. Loescher, G. 2001. The UNHCR and World Politics: A Perilous Path. Oxford: Oxford University Press. Martin, S.F. 2004. ‘Making the UN Work: Forced Migration and Institutional Reform’, Journal of Refugee Studies, 17: 301–18. Oxfam. 2002. Rigged Rules and Double Standards: Trade, Globalisation, and the Fight against Poverty. Oxford: Oxfam. Sassen, S. 1988. The Mobility of Labour and Capital. Cambridge: Cambridge University Press. Stiglitz, J.E. 2002. Globalization and its Discontents. London: Penguin. Summerfield, D. 1999. ‘Sociocultural Dimensions of War, Conflict and Displacement’ in A. Ager (ed.), Refugees: Perspectives on the Experience of Forced Migration. London and New York: Pinter. UN. 2000. Replacement Migration: Is it a Solution to Declining and Ageing Populations?, New York: United Nations Population Division. UNHCR. 2000. The State of the World’s Refugees: Fifty Years of Humanitarian Action. Oxford: Oxford University Press. ———. 2005. Refugees by Numbers (2005 Edition) Geneva: UNHCR, www.unhcr.ch United Nations Department of Economic and Social Affairs. 2004. World Economic and Social Survey 2004: International Migration. New York: United Nations. Zlotnik, H. 1999. ‘Trends of International Migration Since 1965: What Existing Data Reveal’, International Migration 37: 21–62.

2 Strategies, Stories and Smuggling: Inter-regional Asylum Flows and Their Implications for Regional Responses Khalid Koser

Introduction The majority of asylum seekers in the industrialised countries originate in other, normally less developed, regions. In 2004, for example, the top ten origin countries for asylum seekers across all the industrialized countries were, starting with the most significant: the Russian Federation, Serbia and Montenegro, China, Turkey, Iraq, India, Nigeria, Somalia, Pakistan and the Islamic Republic of Iran (UNHCR 2005). The purpose of this chapter is to review the nature and mechanisms of such inter-regional movements, and consider their implications for regional responses to asylum seekers and refugees. Specifically, the chapter examines whether, and if so how, asylum seekers and refugees choose their destinations when they move outside their own regions. It focuses on asylum seekers in the UK – which in 2004 was the third most important destination country for asylum seekers in the industrialized world, after France and the USA – and thus, in particular, on responses at the European Union (EU) level. In the context of this volume’s concern with regional responses to forced migration, the focus of this chapter is relevant for at least three reasons. First, one of the justifications for strengthening borders and associated measures in the EU today is that asylum seekers choose their destinations largely in response to current policies and procedures. Hence greater border controls will deter ‘bogus’ applications. Second, any

44 | New Regionalism and Asylum Seekers

attempt to introduce regional solutions like burden-sharing, as has been proposed at various junctures in the (EU), needs to explain whether and why asylum seekers have preferences for particular destinations. This is because one implication of a burden-sharing regime is likely to be the relocation of asylum seekers from the country in which they first arrive to another. Third, greater understanding of the dynamics of inter-regional movements is required in order to inform proposals to process asylum applications and protect refugees within their own regions (Veenkamp et al. 2003). The chapter draws on two main sources of information. One is the existing literature. A number of relatively recent studies have focused on various aspects of the migration decision-making process by asylum seekers, such as how they perceive potential destinations (Robinson and Segrott 2002); the impact of asylum policies (Zetter et al. 2003), how they choose specific destinations (Havinga and Böcker 1999) and the role of social networks and smugglers (Koser 1997). The second source is the results of an empirical study conducted among recently arrived asylum seekers in the U.K. between 2002 and 2003 (Gilbert and Koser 2004). This study focused in particular on the extent to which asylum seekers had information about their destinations before they arrived. This chapter is structured around three main themes that emerge from these combined sources. The first is the impact of asylum and immigration policies and practices on the scale and direction of interregional movements. The second concerns the impacts of social networks, and the third is the growing significance of migrant smugglers. Each part of the chapter is similarly structured, placing empirical data in the context of the existing literature. The implications of this analysis for asylum policies and procedures are considered in the chapter’s conclusion. First, however, the methods for the empirical research on which this chapter draws are briefly described.

Methodology Asylum seekers come from diverse backgrounds. It is thus difficult to understand the characteristics of the vast array of different national groups in a single study. This research therefore concentrates on asylum seekers from four sources: Afghanistan, Colombia, Kosovo and Somalia. These countries were chosen because the asylum seekers are very different from one another and that diversity allows some evaluation of the differences in political, economic and social circumstances that motivate people to flee abroad.

Strategies, Stories and Smuggling | 45

The national groups differed in three important respects. First, the countries were different in terms of the numbers of people seeking protection in the U.K. and in the timing of their arrival. Over the last ten years, Afghanistan, Somalia and the Former Republic of Yugoslavia (FRY) – including Kosovo – have been three of the four countries that provided the most asylum applications in the U.K. (the fourth is Sri Lanka), whereas Colombia has generated very few applications in the U.K. In 2001, when most of the respondents in the survey arrived in the U.K., of a total of 71,365 asylum seekers, 9,000 originated in Afghanistan, 6,465 from Somalia and 3,190 from FRY. In contrast there were 360 from Colombia (UNHCR 2005). Second, the four countries were very different in terms of the frequency with which asylum seekers were granted protection in the U.K. During 2000 and 2001, 94 per cent and 88 per cent of asylum applications from Colombians were refused asylum in the U.K. In contrast, the Somalis had a refusal rate of 21 per cent in 2000 and 42 per cent in 2001. Afghan applicants were different again, with higher refusal rates in 2000 and 2001 than for 1999. The percentage of applications refused asylum from the FRY nationals was 7 per cent in 1999, 93 per cent in 2000 and 79 per cent in 2001 (Heath et al. 2003). Finally, each national group was different in terms of its links with the U.K. Areas of Somalia had once been part of the British Empire, whereas Afghanistan, Kosovo and Colombia had not. The research used a variety of methods to collect information, including both quantitative and qualitative approaches. The principal methods of data collection consisted of a survey of asylum seekers and focus group discussions in the U.K., meetings with those knowledgeable of asylum matters in this country and visits to the study countries. The survey was intended to provide an illustrative rather than a representative sample of asylum seekers, as choosing a representative sample of asylum seekers is virtually impossible because they are so diverse. Given the impossibility of choosing a representative sample, the aim of the survey design was to achieve as much diversity in the sample as possible. The original plan was to interview twenty-five asylum seekers from each of the four national groups. In practice, it proved very difficult to recruit enough Afghans but the final sample, of fifteen Afghans, twenty-five Colombians, twenty-two Kosovans and twenty-five Somalis, still satisfied the goal of diversity. Interviews were conducted with a generous mix of age groups, men and women, people at different stages of the asylum process, people who entered the U.K. at different times and who were living in different places in the U.K. Their characteristics were broadly similar to those of the population of asylum seekers in the U.K. (Heath et al. 2003). Table 2.1 provides a profile of the respondents.

46 | New Regionalism and Asylum Seekers

Table 2.1: Profile of the respondents Characteristics Sex Male Female

Afghanistan

Colombia Kosovo

Somalia

Total

14 1

15 10

11 11

14 11

54 33

Age