Foreign Relations & International Law

The Lawfare Podcast: Asylum-Seekers and the EU Migration Pact

Natalie K. Orpett, Steve Meili, Jen Patja
Monday, April 1, 2024, 8:00 AM
How is asylum and migration law evolving globally?

Published by The Lawfare Institute
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In early February, the European Union approved a major overhaul of its immigration laws. If approved by EU member states, the pact will drastically curtail the rights of migrants and asylum seekers entering the European Union. It’s part of a trend we’re seeing all over the world, including here in the U.S.  

Lawfare Executive Editor Natalie Orpett sat down with Steve Meili, Professor of International Human Rights Law at University of Minnesota Law School. They discussed the EU Pact’s new provisions, why critics are calling them a violation of human rights law, and how asylum and migration law is evolving globally. 

Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



[Audio Excerpt]

Steve Meili

I suppose even if it doesn't pass, it's just a sign of where things are going, and a case study of that. So the politics will be interesting. But even if it doesn't get passed by all of the EU states, the fact that it's gotten this far, many of these draconian measures, is an illustration of how the landscape has changed. I mean, the EU's been trying to develop a uniform system of asylum for many years because one of the issues there is the tremendous disparity in the asylum grant rate from country to country. The ideal is, it shouldn't matter what country you set foot in and claim asylum. Your chances should be the same wherever it is. And that's just not been true, even after the EU developed something called the Common European Asylum System a decade or so ago that consciously attempted to make the standards uniform across national boundaries. Didn't work. Hardly changed things at all.

[Main Podcast]

Natalie Orpett

I'm Natalie Orpett, Executive Editor of Lawfare, and this is the Lawfare Podcast, April 1st, 2024. In early February, the European Union approved a major overhaul of its immigration laws. If approved by EU member states, the pact will drastically curtail the rights of migrants and asylum seekers entering the European Union. It's part of a trend we're seeing all over the world, including here in the U.S. I sat down with Steve Meili, Professor of International Human Rights Law at University of Minnesota Law School. We discussed the EU Pact's new provisions, why critics are calling them a violation of human rights law, and how asylum and migration law is evolving globally.

It's the Lawfare Podcast, April 1st, 2024. Asylum Seekers and the EU Migration Pact.

Okay, Steve, I've invited you on to talk about the EU Migration Pact, which is some major legislation coming out of the European Union, which was recently approved, but has not yet been voted on. Reportedly, that's happening in April. But before we dig into that, I wanted to just start by defining the legal landscape of migration law and in particular, asylum law. So can you just get us started with a lay of the land? We have both international law, in particular, the Refugee Convention, also the patchwork of individual states’ domestic laws. What do you think is important to understand about that legal framework?

Steve Meili

Thanks, Natalie. I think that I can give a brief overview of the asylum and refugee system that you've introduced. And it is based primarily on international law, and then what individual countries have done is incorporate that international law into their domestic law, and it's somewhat unusual, and that it's been done to the extent that it has been across the world. It doesn't mean that it is an efficient system, and it's become less efficient as time has gone on, but it's actually one of the few areas where many states, including the U.S., have incorporated international law and key parts of international law, that is the definition of a refugee, pretty much word for word into their domestic law.

So, we can talk a little bit about that international law because it is the basis of refugee and asylum law in different countries. And that's the Refugee Convention, which you mentioned, of 1951, which emerged as a result of the atrocities of World War II, when there were millions of refugees throughout Europe. And this was an effort to help those refugees achieve safety and security and relief from persecution that they had suffered under the Nazis. And so it was very time-specific, i.e. post-World War II and area-specific, mostly, or entirely, focused on refugees in Europe.

The main feature of that Refugee Convention is it protects individuals who either have suffered persecution in another country, typically in their home country, or are likely to suffer persecution if they are sent back. Persecution is not defined, but persecution has to be on the basis of one or more of five grounds: race, religion, nationality, membership in a particular social group, and political opinion. As you can imagine, over the years, there have been many disputes about who fits into those categories and who does not.

But one of the issues all along is, because it was so time-specific and area-specific, it has had difficulty in many ways adapting to changes in refugee flows that just the dynamics of migration over the intervening years. Frankly, and you can see this in some of the in the preamble to the convention and other writings about it, the post-World War II refugee situation was seen as temporary. The idea was we're going to provide resettlement assistance for folks who are fleeing the Nazi regime. There might be an opportunity to have folks return once the regime was defeated, but it was seen as a temporary problem. And, obviously that didn't happen, and as a result of decolonization and other historical phenomena through the ‘50s, ‘60s and beyond, we've had an ever-increasing number of refugees throughout the world.

So, what that means is this relic, in some ways, of post-World War II Europe has had to adjust and been adjusted by those who practice in this area to very different phenomenon, very different forces that are driving people to leave their homeland and seek refuge elsewhere. So that's the [inaudible] that I would say, this idea that you have to show individual persecution. That's part of the problem and one of the reasons why the system suffers from delays and inefficiencies because people have to show that they themselves are going to be persecuted if they return to their home country. And that's much more difficult than saying, “Well, I am from country X. And because of that, if I head back, I'm going to be persecuted.” And that's actually, pre-World War II, the way the refugee system was set up, it was much more of a group-based model. But then, after World War II, or during World War II, it became much more focused on individual persecution by the state.

Natalie Orpett

And just to clarify, the discussion of persecution is with respect to the standard you need to meet to claim asylum, correct?

Steve Meili

That's correct.

Natalie Orpett

Okay. And how do we define under international law, and as you said, in most states where they've adopted the international law specifically, how do we define the term refugee versus migrant versus asylum seeker?

Steve Meili

Right. So, those terms often get conflated. I'll start with a refugee is someone who has demonstrated that either they have been persecuted in their home country and/or are likely to be persecuted if they're sent back. So, in some cases, people receive refugee status before they arrive at their country of refuge, and these are folks typically who are in refugee camps and then are assigned the status of refugee at some point and then sent to a designated country. Now many people stay for years, now we have generations of people in refugee camps. But anyway, the refugees are individuals who have met that definition, i.e. they have demonstrated that if they return to their home country, they will suffer persecution on one of those five grounds--race, religion, nationality, membership in a particular social group, and political opinion.

Asylum seekers are those who have left their home country because of persecution or fear of future persecution and are seeking it in their country of refuge. So those are people who are arrived at the border of a country of refuge and claim asylum and then have to demonstrate that they have suffered persecution and/or are likely to suffer persecution if they are returned to their home country. And they have to show that that persecution is on the basis of one of those five grounds.

Migrants is a broader category and quite controversial. We often hear the term economic migrant to try and distinguish from asylum seekers or refugees, i.e. folks who are fleeing their homeland because of economic hardship and they want to improve their economic situation. It's often very difficult to distinguish between the motivations for people leaving their home and there can be multiple motivations. There can be persecution and there also can be economic justifications or economic reasons for fleeing their homeland. So migrants are, a broader category than either refugees or asylum seekers.

Natalie Orpett

Yeah. And another, I think, interesting challenge, really serious challenge these days, which we've talked about on previous podcasts, also relates to climate migration, which I would like to come back to when we're talking more broadly.

But let's turn to the EU Migration Pact. I think it's a really interesting case study in how countries are trying to grapple with challenges of migration, of refugees, of asylum. So the background of the pact, as I understand it, is the process of drafting this legislation actually began in 2016. So it's been underway for a long, long time. And that was in response to a major influx of individuals seeking asylum, or at least seeking entry to the European Union, mostly from Syria, Afghanistan, Iraq, Libya, Eritrea at the time, and putting just an enormous amount of pressure on southern border countries to be able to handle this enormous influx of people. And of course, since then, there have been other influxes based on global events of migrants to southern border states within the EU, but also from elsewhere.

So with such a long process of coming up with this legislation to get it approved, can you talk through what the challenges were, what the areas of dispute were, and how we got to the pact as it has now been approved?

Steve Meili

Sure. And it has been a long process. Pretty much, I think every aspect of it has been contentious and still is, as you say, it's been proposed, but it has to still be approved by each of the 27 countries of the EU. So there's going to be certainly still a lot of conflict and a lot of discussion, and we'll see what happens. But I think it is a good case study because it demonstrates several of the ways in which countries around the world, frankly, have been dealing with or trying to deal with the large and ever increasing influx of refugees, as you said, in addition to individuals fleeing armed conflict, domestic violence, gang violence, we now have and will continue to have an ever increasing number of what are called climate refugees or folks who are fleeing because of natural disasters, man-made disasters, natural events that are in some ways exacerbated by governmental decisions.

But anyway, this was a pact a long time in coming, very much, as I understand it, the result of pressure on the right to deal with the immigration issue. This ties into the politicization of the immigration issue and how politicians, particularly on the right throughout Europe, certainly in the U.S. and elsewhere, have utilized and exacerbated public fears about immigration to justify more draconian tactics. Whether they're tactics at the borders, whether they're tactics in terms of detention once folks get into the country, and then a range of what are called externalization of border policies where wealthier countries in particular are extending their borders by preventing refugees and asylum seekers from even getting to the border where they could assert their right to claim asylum.

I think one of the things we're seeing is, in a sense, an assault on the right to claim asylum, which has been part of international law for decades, and certainly is part of the Refugee Convention. And I think what countries have figured out is they do have these international obligations to afford people that right, but it only manifests itself if folks can get to the border and claim it. So what we're seeing we've seen in Europe, we've seen in Australia, U.S., we can talk about other examples later on, are these efforts by countries to keep folks from actually getting to the border. But that's a slightly different story, but certainly the EU pact, there's some of that in there. Also relying on certain countries in the EU to pick up the slack or take more of the burden on receiving refugees and asylum seekers.

Natalie Orpett

On the point, just to ground a little bit in the actual text, I think one of the mechanisms by which this pact is trying to deter people from actually showing up at EU borders includes there's a new rule that if someone has traveled through what they call “safe countries,” which include countries like Tunisia, Egypt, Turkey, that they will not even be entitled to an assessment as to their eligibility for being admitted to the EU. They will just be sent back to those countries. This is, of course, something that sounds very familiar to Americans from our own discourse over immigration. I saw recently also there was a deal that the EU announced with Egypt where the EU is providing 200 million euros worth of assistance to Egypt to curb migration to bolster its own system, supposedly to be able to prevent people from leaving Egypt and showing up at the EU. Are there other aspects of the EU pact that you think speak to this broader trend you're talking about?

Steve Meili

Yeah, I think those are great examples. The other aspects of it are they have something called the “solidarity mechanism” to supposedly take pressure off some of the more distressed countries, countries typically in Eastern or Southern Europe, which are the countries of first arrival into the EU. But again, here they're giving an option to countries more in either Western Europe or Northern Europe to accept a certain number of refugees or pay money. I mean, basically, they're putting a price tag on border control or on control of individuals, whether it's, as you mentioned, paying Egypt to bolster its enforcement of immigration or paying those countries within Europe who are bearing a larger part of the load.

I mean that, of course, bearing the larger part of the load has been in place for a long time. Italy, Greece, their asylum systems have just been deluged by new arrivals, particularly during that era, as you mentioned in 2015, where we had many, many entries from migrants from Afghanistan, Syria, etc. The pact is, perhaps, you could view it as a way to lessen the burden on those states of first entry by at least offering money to assist, but again, it's a way for these countries to get around their obligations under international law which is really what all of this is about. It's a way--there are several ways that countries are able to shirk their responsibilities, because, as you say, if they pass through a so-called safe third country, they're not even going to get any kind of hearing or opportunity to present their case.

The whole point or one of the points of the pact is a faster vetting of what are called “irregular arrivals.” And when you have these quick turnaround interviews, rapid decisions, there's usually never an opportunity to have an attorney present during that that procedure. No legal aid. People don't understand what's happening. Before they know it, they are removed from the country, or they're put in detention centers. I think that's the other thing that's going to happen. We're going to see more border detention centers throughout the EU. And that raises all kinds of concerns.

Natalie Orpett

And how do we define, or how does the pact define, the term “irregular arrivals?”

Steve Meili

In general, it--and this goes back to our discussion earlier about the conflation of some of the terms. I see it as the way we think of the term of “migrants.” So it can include asylum seekers or those who at least claim asylum, but it certainly includes those who are seen as economic migrants. It's basically people who don't have citizenship or other immigration status in the country that they're arriving to. And so, the idea is developing these systems to help countries decide in a very short order whether or not someone is entitled even not even to asylum necessarily, but just to the process of asylum. And that's where the so-called safe third country part of it comes in. If they travel through one of those countries, that's it. That's a quick decision. And the U.S. is doing that, too. We can talk about the U.S., but the U.S. is doing the same thing, including and certainly under Biden. It's not just something that was happening under Trump.

Natalie Orpett

Right. I do just want to take a second to back up to just put some numbers on this, because, as you mentioned earlier, the initial context for creating the Refugee Convention, around which all these domestic laws are oriented, was thought to be temporary and of course hasn't been. And as we were talking about earlier, there have been repeated influxes. So I was just looking at the numbers. Just to give people a sense of the scope of the challenge, I think they're worth noting specifically. So in 2022, EU countries received about 966,000 asylum applications, and that's compared to about little under 500,000 in the U.S. I think there's a tendency in the U.S. to forget that this is not only a U.S. challenge. And that's compared to there is a difference in the population size of the EU versus the U.S.

But these are really significant numbers. And one of the phenomena that we've seen in the United States that has gotten a lot of attention and has been the subject of really some, frankly, horrifying stories is this tendency to increase detention of people who are trying to enter the United States. And as I understand it, the EU Migration Pact is now allowing for new and longer forms of detention and includes a provision that individuals who are being detained in these detention centers are not considered on EU soil for the purpose of being eligible for EU benefits and other resources that might be available to others. So can you comment on that?

Steve Meili

Yeah, that's absolutely right. And again, that is, in a sense, a legal fiction that the EU has devised in order to prevent asylum seekers from accessing those benefits that you mentioned, healthcare, right to work, those kinds of things, but also prevents them from accessing the asylum system. Again, with this quick turnaround before really there's a reasonable inquiry into whether or not they have met the standard for asylum.

I mean, litigating an asylum case, which I've done for many years in the clinic that I supervise here at Minnesota, it takes months and months to gather the necessary evidence. People who are fleeing persecution don't bring all their documents. They have the clothes on their back usually and that's about it. And so, verifying their stories in a way that persuades an immigration judge to grant them asylum takes time. Getting in touch with witnesses who are often reticent to talk because of fear that they will suffer for persecution makes it difficult. It takes a long time for refugees to trust the lawyers or other advocates that they may be fortunate enough to find to tell their stories. That takes repeated interviews for people who have been traumatized to be able to talk about it with someone else.

So to expect someone without access to legal assistance to be able to make that case in a period of days or even weeks, frankly, is completely unrealistic, and in my view, is a violation of their right to seek asylum because it's not really asylum. I mean, it's not a formal enough process for folks to be able to demonstrate that they meet the standard and therefore are entitled to protection.

Natalie Orpett

Yeah. Both of the asylum cases that I litigated when I was in practice took more than four years to fully adjudicate. And the extent, I mean, I'm not familiar with the adjudication system in EU countries or the extent to which they're standardized across countries. But I can say that from my brief experience in U.S. immigration court, the standard of proof is really amazing. As you said, it is very high. It is very detailed. It requires a lot of documentation. And when you're representing people, particularly people who are fleeing conflict areas or who, as is the standard for asylum, are fleeing serious forms of persecution, to expect people to be able to provide that degree of documentation and evidence in support of their claims, let alone to do so on such an expedited time frame, is really unimaginable to me. So I suppose I do just want to emphasize that for the listeners.

One other provision of the EU immigration pact that I was interested in your thoughts on as I've seen a lot of criticism of it from advocates relates to this provision, allowing for EU states to deviate from EU legal standards when they've assessed that there is a quote unquote “crisis situation,” which seems to be broadly, if at all, defined in the pact. And interestingly, it includes a term that I learned for the first time, which is instrumentalization. And that is, at least as I understand it, correct me if I'm wrong, the notion of using, of other countries, non-EU state actors, using migrants for political purposes. And the, prime example being the 2021 incident where the Belarusian government encouraged migrants from North Africa and the Middle East to come to Belarus and then gave them resources and information to travel to Poland, Lithuania, Latvia, EU countries with which Belarus shares a border to send them into the EU and create a migrant crisis from that direction as an express political move based on disagreements and tension between Belarus and the EU.

So I think this is just a real example of the type of politicization that you were referencing earlier. So what are your thoughts on that aspect of the pact?

Steve Meili

We could talk a long time about this and the parallels to what's going on in the U.S. and elsewhere are striking. And I'll deviate there for a second and get back to the EU. But you see it in Texas in particular in two ways. So we've got the very much in the headlines right now, the SB4, the state law in Texas that courts have upheld and then put an injunction against and it's back and forth. But anyway, the constitutional argument that's being made is that basically states can do their own immigration control in the case of an invasion, and that's what's being claimed, right? That justifies it. And so the link to the EU pact is this idea of the crisis, the force majeure, that allows states to, in a sense, deviate or not follow legal norms because they can claim a crisis, and Texas is claiming an invasion.

I would imagine if this pact even gets approved, which is not a sure thing, you'll see a lot of countries claiming crises because of a large influx of migrants for any particular reasons. And they'll use that to justify all kinds of draconian measures. And then of course, any challenges to those measures can take a long time to adjudicate. But in the meantime, people are, whether it's being incarcerated or detained in horrible conditions, whether it's having these expedited procedures where people are deported without any due process, those kinds of things expanded before you can have a court rule that, no, this really wasn't a crisis and these things were wrong, that the damage has been done.

So yeah, that backstop that a lot of countries would rely on in violating the rights of asylum seekers is really troubling and is, I think, a very valid cause of concern from advocates and other critics of the EU pact.

Natalie Orpett

What would be the mechanism for trying to challenge a state's assessment of a crisis situation, to the extent there is one?

Steve Meili

Yeah, it's a good question. And EU law and procedure can get a little bit complicated. There are different ways that one could do it. And because of the court system within the EU, but also the domestic court systems where challenges might be tried, particularly if those states have incorporated international law, and including the European Convention on Human Rights, which, which may be applicable. There are treaty bodies that could be possible venues for challenging these practices because what a lot of refugee lawyers in the EU, and in other countries as well, but certainly in the EU, are following, or a basis of the challenge is on human rights grounds. That in addition to violating international refugee law, in terms of giving folks the opportunity to apply for asylum and meet that standard that we talked about earlier, these same practices are violating international human rights law, whether it's the right to be free from torture, whether it's the right to life, whether it's the rights of the child when we're talking about unaccompanied minors or families who are fleeing persecution. So, there are a lot of venues that advocates can use to challenge these practices. The problem is they all take a long time to win their way through the court systems. And as I say, by that time, a lot of the damage has already been done.

Natalie Orpett

And as a matter of standing, do advocacy groups have standing to bring challenges, or do they need an actual individual who has applied for and been denied asylum?

Steve Meili

Good question. And typically, yes, the latter. And that makes it more challenging also because then, given how long these processes take, it's not easy to find a claimant who has the wherewithal to see this litigation through. And their concerns are with their own survival and their own family survival in many cases. And for them to stick with litigation throughout the entire process can be very difficult. So that's certainly another hurdle in that advocate space. And unlike the U.S., there's in most EU countries, you don't have the class action mechanism. It makes it a little bit easier in the U.S. to challenge some of the practices where you can find a couple of name plaintiffs who, for a variety of reasons, are able to stay the course a little bit more.

Natalie Orpett

Okay, so I did just want to come back to your point that this hasn't actually passed yet and there are 27 member states of the EU, each of which has to pass it. So what is the thought right now about the likelihood of its passage, or what else might happen over the next month or more as this effort is underway?

Steve Meili

Yeah, I think the politics of it will be fascinating. You've already had a statement from governor of Poland that has some serious concerns about it. So, individual states--and I don't know how this is going to fall, whether it's ideological, whether it's economic, because if the border states Italy, Greece, perhaps they'll be more likely to support it if they see it as a means to take some of the pressure off of them. ut then again, if you've got these clauses that allow states to abdicate their responsibilities under EU law, or to just pay some money, but not take in any more refugees, I'm not sure they're going to see that as being in their interest either.

A lot of it depends on how strong immigration advocacy groups are in individual countries. And what we've seen in many of the EU states, including some states traditionally favorably disposed towards migrants, is a much stronger right-wing presence and ability to mobilize against the rights of asylum seekers. They're claiming that in a sense it's the rights of the citizens are being violated now because we've got this influx, this invasion of non-citizens. And that has some political power and we've seen it certainly in the States, we've seen it in other countries. We're seeing it more and more in the EU, including, as I say, in some countries that you wouldn't have expected it in the past, like Sweden.

Natalie Orpett

And am I right that the expectation is that this will move through member states over the next month? There was an expectation that there will be a vote within the next month.

Steve Meili

That's correct. That's correct. So there's going to be all kinds of lobbying and political maneuvering and attempts to influence public opinion on this. So yes, it's going to be--and I'm not a good predictor of political outcomes, so I'm not sure what's going to happen. But I suppose even if it doesn't pass, it's just a sign of where things are going and a case study of that. So the politics will be interesting, but even if it doesn't get passed by all of the EU states, the fact that it's gotten this far to many of these draconian measures is, an illustration of how the landscape has changed.

I mean, the EU has been trying to develop a uniform system of asylum for many years, because one of the issues there is the tremendous disparity in the asylum grant rate from country to country. The ideal is it shouldn't matter what country you set foot in and claim asylum. Your chances should be the same wherever it is. And that's just not been true even after the EU developed something called the Common European Asylum System, a decade or so ago, that consciously attempted to make the standards uniform across national boundaries. Didn't work. Hardly changed things at all. But this plan kind of moves away from that. I mean, it doesn't renounce the idea, but it's much more about control of borders and numbers and ways to deflect the migration of large numbers of people, which is unprecedented around the world.

The other thing in terms of the numbers, and you mentioned this disparity between the U.S. and the EU, and the other thing to keep in mind is that the numbers in other parts of the world dwarf the numbers in the EU in terms of migration. The numbers in so-called South to South migration are in the millions, and the countries who are bearing the largest burden of cross-border migration are not in the E.U., certainly, and certainly not the U.S. So that's just in terms of a perspective on this issue that migration to the U.S. and the EU gets a lot of attention in the media, but that's not where most of it is happening.

Natalie Orpett

So yeah, let's open the aperture a little bit. I think first, let's talk about some of the overlaps that you've mentioned, but if there are others you want to comment on, between the EU and the U.S.

Steve Meili

Sure, we've touched certainly on some of them with the externalization of borders, and in a sense turning over the responsibility of controlling borders to other countries. And we see this certainly in the safe third country model, which we've seen in the U.S. that the Trump administration introduced when it essentially said that if anyone has come to the U.S. southern border through the northern triangle of Central America, Honduras, El Salvador, and Guatemala, then they have to be returned to those countries to apply for asylum there because those are safe third countries. Many people didn't really take that very seriously because a lot of people are leaving those countries and applying for asylum in the U.S. and in some cases in Mexico. So it was a bit ironic that they were being described as safe third countries, but anyway, that was the idea.

But now we're seeing the Biden administration has taken a similar approach with migrants from really any countries that they pass through on the way to the U.S. if they haven't applied for asylum in those countries. And not just the Northern Triangle of Central America, they can be denied asylum in the U.S. So you've got countries throughout Latin America, for example, that are setting up systems to supposedly allow folks to apply for asylum as if they were in the U.S. Whether this is actually going to happen, who knows. But again, it's an effort by the U.S. to externalize the border and foist the responsibility under international law onto these other countries.

And you have the examples in the UK of the Rwanda policy, as it's called, where folks who are intercepted at sea on their way across the English Channel from France--the proposal hasn't happened yet because it's been stopped by advocates in the courts. But anyway, the idea is they don't get to come to the UK, they're going to be shipped to Rwanda, which is alleged to be a safe third country. And of course, Rwanda is receiving lots of money in exchange for that policy. Australia has been doing offshore resettlement of refugees for years and years. Countries borrow these ideas from each other. There's, in some sense, nothing new here, but we just see it repeated in various contexts around the world.

And then in the U.S. you have this interesting phenomenon now where individual states, Texas is taking the lead on this, are saying, “We're going to enforce immigration law on our own because the federal government isn't doing it.” I don't know of other examples of that, but it's part of the unique federal system that we have in the U.S. where individual states are taking this upon themselves.

But these offshore practices, the safe third country, these are happening all over and will continue to happen. Because again, it's a way to prevent people from getting to the country of refuge where they can, at least in theory, access that asylum system and make their claim.

Natalie Orpett

Yeah, and I think this is reflective in the rhetoric, right, that we talk now in the U.S., and it sounds like also in the EU, about what's deemed “border security,” which is effectively making reforms to the ability of people to access or introduce themselves into the asylum system, rather than reforms to the system itself to try to make it better or more efficient. I will just note also from my venture into the immigration system while I was practicing, the backup of immigration courts is completely staggering. And you may have some of the statistics off the top of your head, but to the extent listeners are not familiar with the fact that immigration courts are years and years, and sometimes decades, behind being able to actually adjudicate claims. It is an important piece of the context to understand.

I did want to turn also back to your point that, in fact, despite the fact that the EU and the U.S. and other Western countries are the subject of most of the attention, that they are actually not the countries receiving and trying to accommodate the largest influx of migrants. So can you speak to those countries and what the challenges look like there?

Steve Meili

Right. So some examples are Lebanon, Jordan, some of the countries in the Middle East who have had to absorb millions of migrants from Syria in particular. And in those countries, first of all, just the sheer numbers--and I don't have them off the top of my head--but the percentage of noncitizens in those countries is staggering compared to what we're seeing in the West. And some of the countries are not signatories to the Refugee Convention. It's a much more informal system, if there's a system at all. The borders are, in many cases, relatively porous. And so, in those countries, there's a similar breakdown to any notion of a formal system of applying for or obtaining asylum. In most cases, people are just crossing the border to achieve some safety, but any notion of an enduring or durable solution is pretty much off the table in many of those situations.

And in terms of any global response, there was a global agreement on migration a few years ago with burden-sharing and trying to get wealthier states to pay more to the less wealthy states who are bearing the disproportionate burden of migration. But those agreements are very aspirational and haven't really changed things in any significant way.

Natalie Orpett

And I know there have been efforts also on climate migration, which we've talked about a couple of times as well.

Steve Meili

Yeah, climate migration is, that's the next wave in a sense. And that obviously, because climate change isn't going to reverse itself anytime soon. So the migration that results from that, and again, climate change can exacerbate already existing forces that drive people to leave their homeland. That is going to require, I think, a whole new thinking about what we mean by asylum. Because in many cases, if folks are going to the West to seek refuge, those are the states who are actually creating the conditions that made them flee in terms of carbon emissions and other things that contribute so heavily to climate global warming. So it almost flips it on its head. And so, who's the persecutor in that case? And who are you escaping from if the persecutor is actually the country that you're arriving in?

So I think there has to be some creative thinking about this. Some scholars are doing that. They're thinking about it more in terms of the laws of displacement and giving people, whether it's temporary protection. That would include things like the right to work, the right to health care. Not necessarily, again, what we think of as the durable solution of asylum, which absolutely prevents people from being returned to their homeland.

Because again, that process takes a lot of time. You're absolutely right about the delays in the U.S. system. And one example that I use is when I started here at the University of Minnesota doing asylum cases, about 13 or 14 years ago, it was ideal for a law clinic situation because you could be pretty confident you could start and end a case within an academic year, which would give students a great learning experience and opportunity to help someone in need. That's virtually impossible now, as you said, your experience. These cases go on for years. They're still good learning experiences for students, but the idea that this could be a one academic year experiences is virtually impossible now. So it takes years and years. And that's going to get worse and worse as migration continues.

So I do think there has to be some more creative thinking. And as I say, some people are doing it, but we may have to think somewhat differently about what protection from harm means. And maybe it's a movement away from the focus on the individual, proving that they themselves are being targeted for persecution. And again, that's the model from the Refugee Convention and the post-World War II model or vision of how the system would work. And more to a group-based determination system that people are fleeing, let's say climate change from a particular country, a particular region. That would be enough to afford some form of protection.

Some countries are doing this, some isolated examples, but Uganda affords per se refugee status to folks from South Sudan. All they have to prove is their South Sudanese citizenship, and they are entitled to resettle in Uganda. Now, Uganda has gotten a lot of international accolades for that and some money, etc, etc. So, I mean in addition, besides humanitarianism, there's certainly some other motivations there. But again, these are the things that I think people are starting to look at. Some countries are. But it's going to take a sea change, I think, in terms of how we view protection for refugees. And I think climate change is going to be responsible for that. It's going to force countries to act in some way because it's just going to be too monumental a problem.

Natalie Orpett

Are there any aspects, do you think, of rethinking or reframing or implementing major reforms to the global or international law understanding of asylum that are achievable in the short term?

Steve Meili

That's a huge question. One area of international law or concept of international law that some scholars are looking at in the context of climate refugees, and other areas for that matter, is the idea of non-refoulement, which in a sense is the basis for asylum. And it says that individuals cannot be returned to life-threatening situations or situations where they're going to be subject to other forms of cruel, inhuman, or degrading treatment. It doesn't guarantee or provide any guarantee a durable solution in the sense that if things get better in home country, then those folks could be returned. But it's the idea that you can't send folks back.

That I think, and reliance on that in terms of a variety of measures, whether it's temporary work permits, which also afford healthcare, temporary but renewable. Colombia is doing this in response to the large influx of Venezuelans over the past decade or so now. Again, not asylum where folks receive a pathway to permanent immigration status in their country of refuge. But certainly in a place like Colombia, where the asylum system is overwhelmed and takes forever to go through, many migrants, they're rational actors, they're opting for these temporary permits because they just want to get into a safe situation. They want to be able to work. They want to be able to take care of their families. So they're going to go for that temporary solution. Again, it's often renewable and also helps the host country in terms of its economy.

And that's the other piece of this. We talked about the policy of it, then there's the economics. And people have been talking about this for a long time. A lot of advocates say immigrants help the economy. We have an aging workforce around the country, particularly in some of the wealthier states, including the U.S. We have labor shortages. Immigrants, migrants, asylum seekers could help to fill that. That seems to be falling on deaf ears in the political world, but it makes a lot of sense economically. Germany, actually, in its initial response to the so-called Syrian refugee crisis in 2015, around that time, they had a very open policy. And part of the reason for that was because they recognized they had an aging workforce that they needed to re-energize. And the migrants helped them do that. They backtracked from that since then.

But I think an enlightened governmental policy would recognize that in addition to protecting the human rights of refugees and asylum seekers, there are ways to abide by their international law obligations that can actually help them in a more self-interested and economic way. The politicization of it makes that argument difficult for many governments to abide by or to follow in making policy. Maybe that'll change, but I don't see it happening soon, unfortunately.

Natalie Orpett

Okay, we are going to have to leave it there. Steve Meili, thank you so much for joining me.

Steve Meili

Thanks very much, Natalie.

Natalie Orpett

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The podcast is edited by Jen Patja, and your audio engineer this episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

Natalie Orpett is the executive editor of Lawfare and deputy general counsel of the Lawfare Institute. She was previously an attorney at the law firm Jenner & Block, where she focused on investigations and government controversies, and also maintained an active pro bono practice. She served as civilian counsel to a defendant in the Guantanamo Military Commissions for more than eight years. She also served as counsel to the National Security and Foreign Policy Legal Team of the Biden-Harris Transition Team.
Stephen Meili is the director of the University of Minnesota Law School’s Immigration and Human Rights Clinic. His recent book, published in 2022 by Oxford University Press, is a study of the constitutionalization of human rights law and its impact on asylum-seekers in Colombia, Mexico, South Africa, Uganda and the United States.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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