Origins of the institution of asylum and background in European law

According to experts, asylum is as old as humanity itself, although we can trace its origin in the ancient Greek civilization. The word asylum comes from Greek – sylum meaning “snatch” and considering the “a” as negative: not to snatch (Urquidi, 1981). Originally, its meaning would be that of religious protection, hence the other meaning that the United Nations Agency for Refugees gives to the word as "inviolable temple" or "place where no one can be disturbed" (Rodriguez, 2016). Framing asylum in the most modern times, we understand it as the power that a State has to grant protection to a "non-national" individual who is fleeing: but to arrive at the right to asylum, the impact of World War II was necessary.

In December 1948, the Universal Declaration of Human Rights was born with the aim, as its preamble indicates, of making the world aware of human rights.

Najib Abu-Warda (2008), Professor of International Public Law and International Relations at the Complutense University of Madrid, thus qualifies the provisions of the Geneva Convention:

The reasons for emigration are usually complex and not merely the result of immediate persecution. People flee civil conflicts, massive human rights violations, aggressions and foreign occupations, poverty, natural disasters (...) (p. 44).

The latter ones, despite not being a cause recognized by the Refugee Statute, today generate more displaced people than armed conflicts (Norwegian Refugee Council, n.d.). Experts estimate that by 2050 global warming and natural disasters will force 200 million people to leave their homes in search of safer places (Trejo, 2017). These alarming figures have led to the issue of climate change being placed on the agenda of international meetings such as the 24th United Nations Conference (COP24), which is dedicated solely to addressing it.

The need to stop climate change was related to the migration crisis during that meeting. The person in charge of the migration area said the following:

The changing climate, floods and droughts are increasingly threatening the safety and livelihoods of people in many places on the planet. This is leading many families to consider whether they can stay where they are or try to live elsewhere (Ecosphere, 2018).

The countries that have already shown themselves to be most vulnerable to the effects of climate change are impoverished countries whose populations have been suffering from extreme weather events for years, often depriving them of their homes and arable land, as is the case in the countries of the Horn of Africa. These environmental factors, when they persist over time, combined with other cultural, economic or political factors, can result in violence, internal strife and political instability, among others. The good news is that some European Union countries, such as Sweden and Finland, have already introduced the term "environmental migrant" into their legal systems, although these are only a few exceptions, since the reality is that international law does not yet recognize the legal status of environmental refugees (Trejo, 2017). Whether the worst forecasts for the year 2050 come true, if the legal framework is not updated sooner, we would find millions of climate refugees immersed in a limbo of rights violation.

According to experts in the field (Trejo, 2017), urging the United Nations to modify the Statute of Refugees based on this not so new but imminent reality would trigger the implementation of measures and policies by States, aimed at sustainable development of the planet. And, therefore, the climate refugee could become the key that the world needs to stop climate change (Elorrieta, 2019). Refugees thus tell us about our own future and the urgency of acting to avoid the worst.

After the Second World War took place, it was "the European miracle" of being able to "turn enemies into neighbours" (Beck, U., 2015, quoted by Todorov, 2008: 264). The "miracle" responded to the need for acceptance of the plurality of its members, from tolerance and non-aggression (Todorov, 2008. pp. 258-259) resulting in "a model of a mosaic society in which differences become visible through the existence of symbolic borders" (Zapata-Barrero & Pinyol, 2013: 30).

After the war, Europe experienced the so-called "thirty glorious years", a phase of capitalist expansion that lasted until the oil crisis of 1973. This period of economic bonanza and the need for human capital meant a flexible and very tolerant stance towards immigration (Nair, 2006). As a consequence, the process of building walls began. Firstly, through a "common market" with the signing of the Single Act in 1986, and later, through "the free movement of services, capital and persons" (European Union, n.d.). With the Maastricht Treaty, a system of borders would begin to be articulated with the intention of creating retaining walls for migratory flows (Nair, 2016) and the current European Union would start being shaped.

The signing of the Schengen Agreement, and its subsequent entry into force in 1995, created a kind of lock on the doors of Europe, where migratory flows are flexible and fluid inside (Rodier, 2017), but inflexible from outside to inside, thus creating, in the words of Sami Nair (2016), "an instrumental and short-lived migratory demand" that responds to "you will be accepted when you are needed".

After the jihadist attacks of September 11, 2001 in New York and Washington D.C., the need to defend ourselves against the greatest threat to civilization as we know it was born (Biosca, 2018), thus inaugurating the so-called "war on terror" by the West, with the administration of former U.S. President George W. Bush being the main architect of its beginning (Biosca, 2018). Europe, on the other hand, after being scene of other terrorist attacks like the one of March 11, 2004 in Madrid, will begin to increase its security levels. The Member States are looking for a formula to defend themselves jointly from the EU's major problems, and among these, "terrorism" and "clandestine immigration" are beginning to resonate in the same sentence (Nair,2006:14). In 2004, the European Agency for the Operational Management of the European Union's External Borders, hereinafter "FRONTEX", was created with the function of helping the Member States to protect their external borders (Rodier, 2017: 108). International hysteria and the global sense of insecurity gradually transformed the figure of the migrant as the enemy (Nair, 2006: 14). This 'fear of the other' (Todorov, 2008) is legitimised through xenophobia and Islamophobia (Todorov, 2008: 21). All of this was progressively exacerbated by the inflammatory statements of European politicians such as the leader of the ultra-right-wing Vlaams Belang (Flemish Interest) party, Filip Dewinter. In 2006, the Belgian politician targeted Islam as the main enemy not only of Europe but also of the whole world (Todorov, 2008: 22). He qualified that with Islam he not only referred to terrorism, but also, to that massive muslim immigration, which is not finished integrating within our society (Carbajosa, 2006). At this moment, the displaced population according to UNHCR was of 42.7 million people (UNHCR, 2017).

Meanwhile the walls, in a physical and morally way, were being built, conflicts in Arabian world were incrementing with so-called ‘Arabian Spring’. On the 15th March 2011 would officially begin the civil war in Syria, first started with a thirst for modernity and kept behind the dark interests of "geopolitics".

Ombudsman (2016) establishes a considerable increase of asylum applications from 2013 and sets 2015 as the year of the overflow of the International Protection System, with 1,322,825 asylum applications in Europe according to Eurostat.

According to the UNHCR Global Trends report, by the end of 2015, there were already a total of 65.3 million displaced people in the world (UNHCR, 2016), a figure that exceeded the number of displaced people after the Second World War.

To them, those so-called “refugees” were just numbers, until Aylan Kurdi arrived. On September 2, 2015, the photo of the little Syrian boy, dressed in a red shirt and blue pants, who died after his boat arrived ashore on the Turkish coast, broke into the international press. The closeness of the photo and how much Aylan looked like one of “our children” (Rodier, 2017:33-34) would cause whole Europe raising their hands to their heads and sang unanimously "this cannot go on" (Rodier & Portevin, 2017: 20). The image provoked a response of solidarity: Angela Merkel's Germany opened its doors to refugees (Rodier & Portevin, 2017: 19) and the neighbours of some European countries began to offer guest rooms with programmes such as refugees-welcome.

In the media, the Refugee Crisis provoked debates and political meetings, the image of the child would cause what the daily images of cities devastated by bombs had failed to do.

The misnamed "Refugee Crisis" (Ferreo and Pinyol, 2016: 49) was in fact nothing more than the failure of the migration policies that show us, "the image of a fortress Europe, insensitive, more concerned with security and control, than with the protection of the Human Rights of those who try to reach its doors" (Cortés and Forina, 2016: 6).

In the same year, the European Commission presented its European Migration Agenda, which sought to provide a joint approach to this "crisis". Several measures will follow. One of these was the Resettlement Plan of refugees in third countries where their living conditions are completely unfavourable.

According to the United Nations Agency, Turkey, the country that hosts the largest refugee population in the world (UNHCR, 2017), in 2015 had 2.5 million refugees living in a situation of poverty and precariousness (Rodier, 2017), followed by other developing countries like Pakistan or Uganda (UNHCR, 2017). The idea of resettlement was quite right since the commitment on the part of Europe to share the migratory burden with these countries would improve the quality of life of the people and would also largely prevent them from continuing to throw themselves into the sea to die, enriching that network of mafias that feeds on the desperation that underlies "the economy of refugees and the business of their existence" (Zizek 2016: 59). Later on we will analyse who are the actors who benefitted from the misfortune of others.

The other measure searched for resettle 160.00 people from more affected Member States due to the massive arriving of refuges (Mediterranean countries), to another UE Member States. Polonia or Hungary would refuse this kind of measures since their far-right government were deciding to close frontiers and clogging access routes for ‘’illegal immigrant’’ to get into Europe.

In search of a solution to the overcrowding suffered by countries of arrival such as Greece or Italy, hotspots were created: devices with the aim of selecting through a system of categorization based on the nationality of the people (Espuche and Imbert, 2016: 28): those who can ask for asylum, the refugee worthy of it or "true" refugee, and the so-called economic migrants, the "false" refugees (Vives, 2007) whose destination will be the return to the country of origin. (Rodier, 2017: pp: 55-57). Hotspots soon became saturated and became coercive (Espuche and Imbert, 2006: 28), with no capacity to attend to these thousands of displaced people while respecting their dignity and guaranteeing their individual rights, as denounced by Human Rights Watch, which is the subject of an appeal before the European Court of Human Rights (Rodier, 2017: pp 27-28). The lack of commitment and of that principle of solidarity, which was once the cornerstone of the European Union, was latent in the lack of success of the quota system. The President of the European Commission, Jean Claude Juncker, denounced this fact with these words: "Have we forgotten that, after the devastation of the Second World War, nearly 60 million people were refugees in Europe? We have the means to welcome those fleeing from war, terror and oppression" (Sanchez, G and Sanchez, R. ,2017).

More drastic measures were needed to address this incessant flow of migration. In 2016 an agreement was signed between Europe and Turkey that would practically close the eastern border: from 20 March 2016, all new irregular migrants passing from Turkey to the Greek islands will be returned to Turkey (Ombudsman, 2016). This agreement flagrantly violated the principle of non-refoulement or non-return of the Geneva Convention (UN, 1948), and that together with the functioning of the hotspots, makes the Greek islands a paradise for some, but a prison for others.

There's an added problem to all of this. Migratory flows are not a tap that can be turned off; the displaced people did not come in masses to Europe in 2015 because of a "call effect" but rather because of a "flight effect due to the risk of death" (Pérez Guerra, 2018). The failure of these two plans has favoured the creation of spaces such as the refugee camp of Moria, on the Greek island of Lesbos, far from the population (thus complying with the principle of invisibility), where the overcrowding of people, mobility restrictions, insecurity and poor hygiene measures make it a hell within the heaven that for them is Europe (see reference: Podcast Raw Meat, 2019). These points become "liminal places" (term coined by Arnold Van Gennep in his book The Rites of Passage), the person is technically neither in Europe nor in his country of origin, spaces designed for people who are left over (Bauman,2005:16).

The reality of these "liminal spaces" is not exclusive to Europe. Kenya is home to the world's largest refugee camp, Dadaab, with a population of 245,126 (UNHCR count April 2017) that began to be articulated in the 1990s (White, 2017). According to Matilde Fernandez, president of the Spanish Committee of UNHCR and former minister of Social Affairs from 1988 to 1993, despite the intention of being temporary spaces, a person lives in a refugee camp an average of 17 and 18 years.

Source: Martínez Fernández, Yolanda, “El derecho de admisión en Europa: Ensayo crítico sobre la diferencia entre ser un refugiado o un inmigrante ilegal”.

Translation: Páez Civico, Ismael & Delgado Mena, María