The main thrust of EU law has been to design a common policy towards refugees when such an approach was wrong for small island countries
The right to refugee status for those persecuted out of their countries is a precious human right that needs to be protected as much from xenophobes who fear being swamped by foreigners as from those who abuse the right by smuggling bogus claimants or claim asylum abusively.
Provided no genuine refugee is sent to the borders of the country where he fears persecution because of his race, religion, social group or his politics – the principle of non-refoulement – the government is free to tweak the system as much as it can within the confines of EU law.
Bearing in mind that Cyprus law has to comply with the very detailed laws made pursuant to the Treaty on the Functioning of the EU, the government does not have much room to manoeuvre, unless it is prepared to take on the European Commission a la Victor Orban of Hungary.
The 1951 Refugee Convention like the 1945 UN Charter, the 1950 European Convention on Human Rights and the 1957 EEC Treaty were all done in consequence of the experience of people after World War II in which millions perished in concentration camps and millions suffered persecution and displacement, after which the peoples of Europe said never again.
The UN was set up to replace the League of Nations that had failed to maintain peace after World War I. The European Convention on Human Rights was designed to protect human rights violated by the Nazis and their allies, and the 1951 Refugee Convention to protect those fleeing persecution initially owing to events in Europe before 1951 – extended in geographical scope to the rest of the world in 1967.
The EEC was set up primarily to tie up France and Germany economically in such a way that war between them became inconceivable.
The world has changed enormously since all those treaties were signed. The UN does a lot of good work, but its impotence in the war in Syria has destabilised the EU and undermined refugee protection across Europe where refugees are no longer welcome despite liberal laws.
The problem is compounded in Cyprus because it is the closest EU country to Syria and once people manage to reach the government-controlled areas, EU law kicks in with a panoply of rights for the refugee claimant.
Two EU directives were promulgated pursuant to the common asylum policy contained in the Treaty on the Functioning of the EU, one in 2011 and one in 2013. Directives are laws that have to be implemented by member states using their own legislation, unlike regulations that apply directly in member states unfiltered and unvarnished by domestic legislation.
The purpose of the 2011 directive was to lay down standards for qualifying as a refugee. The purpose of the 2013 directive was to establish common procedures for granting and withdrawing refugee status.
So whatever laws member states such as Cyprus pass to prevent being swamped by refugees they have to be consistent with EU law, under which standards and procedures are much more detailed and rigorous than under the 1951 Refugee Convention.
What is extraordinary is that the main thrust of EU law has been to design a common policy towards refugees when such a common approach was wrong for small island countries. The problems faced by countries like Cyprus and Malta are very different at so many levels than those of bigger, more distant states. Quite apart from proximity to countries that are refugee source countries, these two small island states have small populations that are unable to assume the responsibilities imposed by the EU law.
There is a get-out clause but it is not easy to activate. EU law provides that if a member state faces an emergency situation characterised by a sudden influx of refugees the EU, through its institutions, could adopt provisional measures to help the state concerned. The problem with that provision is that it only applies where there is a sudden influx, whereas the problem for Cyprus has been accumulating over a long time.
The common policy as contained in the two directives is just not suitable for small island states. They should have been afforded opt outs like Britain used to have in areas of specific concern when she was a member.
Britain has now left the EU partly because the British people were not prepared to accept loss of sovereignty over important areas of policy. The two EU asylum directives are welcome as they offer maximum protection for refugees, but there is a chasm between laws that favour refugees and the attitude of the majority of the people in Europe, which is negative towards refugees and politically dangerous.
Post Coronavirus anything can happen. No one knows which way Italy will jump after the EU failed to deliver solidarity in its hour of need; and if Italy goes the way of Britain the whole European project is in danger of disintegrating.
Just think about this for a moment. While it has been possible to suspend freedom of movement of EU citizens to Cyprus in the interests of public health after the World Health Organisation declared coronavirus a pandemic, the rights of refugees under EU law to seek refugee status and remain in Cyprus pending a decision could not be suspended.
It kind of makes sense because one is not comparing like with like, but politically it makes no sense at all.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge