“Rutte III” promises restrictive changes to Dutch asylum system

A record 209 days after their parliamentary elections, four Dutch parties have formed a coalition for a majority government that will lead by a single seat. Mark Rutte‘s center-right VVD, Democrats D66, Christian Democrats CDA, and the conservative Christian Union (CU) have hammered out a fragile accord that will lead the Netherlands into the so-called “Rutte III” era. Coalition talks initially included the environmental leftists Groenlinks, but talks broke down over a single issue: migration.

Now, thanks to a leaked version of the coalition agreement from AD.NL, we are able to see the consensus reached by the parties on migration and gain some insight into why Groenlinks may have found it so problematic. (Refresh your memory on the parties’ stances here.)

The coalition agreement sets out that the parties want to maintain a “recognizable Netherlands” that preserves and promotes Dutch traditions and customs. At the same time, the parties agree to introduce new limits and restrictions on immigration and asylum, and to pursue “a much stricter approach to Jihadism.” What will this look like in practice? Here are some highlights, found in the section about migration, asylum and integration (pages 50-55).

Make it more difficult for people who receive asylum to stay in the Netherlands

The parties would limit the number of times an applicant can apply for asylum or appeal a rejected asylum claim. Succesful applicants would be entitled to stay three, instead of the previous five years. After three years, authorities would seek to determine whether it would be possible for the person to return to the country they fled, and if not the person would be able to receive an additional two years protection. At five years, they would be eligible for an indefinite residence permit. By inserting a new hurdle at the three year mark, the government can possibly prevent more people who receive asylum from making it to a more permanent form of residency.

A two-track procedure for asylum claims

The agreement proposes that people seeking asylum from the Netherlands be divided into two groups during an initial evaluation. People who appear to have a good chance of receiving asylum would go to a smaller facility in the municipality they would eventually be housed in, and start right away on language classes. People who are deemed to have less chance will be housed in larger facilities, where their rejection will lead to immediate deportation.

Limit access to welfare for people seeking asylum and make integration mandatory

In order to ensure that people become “self-sufficient,” the agreement proposes that funds for healthcare, rent or welfare are no longer distributed directly to people who receive asylum themselves, but instead to the municipalities who shelter them to dole out, at least for the first two years. Following a test period, people may be able to enter the labour market exit this scenario.

People receiving protecting are expected to start language classes on day 1 and to eventually reach level B2 (formerly A2), and the state will pay for the courses. “Integration is a duty,” the parties write, and people who fail to integrate may lose their immigration status or fail to get a better status or more permanent residency. Aside from learning the Dutch language, integration also means respecting laws and equality, as well as finding employment.

Tougher crackdown on “jihadism”

An additional 13 million euros is allocated to counter-terrorism activities, especially, the agreement notes, for combatting “hate preachers.” The parties propose that new legislation is drafted to ensure that returnees to the Netherlands from conflict zones can be detained upon arrival to be investigated for their possible participation in acts of terrorism. In addition, the parties want more careful monitoring of asylum seekers to mark individuals as possible war criminals.

A shift to the right

If the leaked version becomes the official coalition agreement, it will clearly represent a shift to the right on migration policies in the Netherlands. VVD did not get its way on everything – for instance, they called for refugees to finance their own mandatory language classes- but in many ways this set of new policies is a win for those who oppose migration. It is clear that for Groenlinks this entire program was a no-go. They had called for equality between Dutch and asylum seekers on the job market, the right to state assistance for rejected asylum seekers, and other less restrictive policies. Left democrats D66 may have opposed some many of these changes, but had called during their campaign for smaller numbers of asylum seekers in order to focus on integration- and smaller numbers may well be the result of these policies once enacted.

 


Sources and Further Reading
Green Light for Coalition, (in Dutch), De Telegraaf , Oct. 2017
“Confidence in the Future” Governing Agreement [PDF] [in Dutch], Leaked by Ad.nl Oct. 2017
Dutch Coalition Agreement 2017- Migration & Integration (EN) [PDF] Poorly translated version of Migration Section
Header Image: Mark Rutte by Arno Mikkor on Flickr, http://bit.ly/2kMyfib (CC BY 2.0)
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Sympathy for the Visegrad Group? A look at the V4’s migration proposals

In European migration politics, the governments of the so-called “Visegrad Group” or V4 – Hungary, Poland, Czech Republic and Slovakia– have set themselves apart with their consistently strong stance against EU refugee policy over the past few years. The four strongly oppose a quota distribution system collectively and take a harsh tone against both Brussels’ migration policy and people seeking asylum in their national media. (For an example, read “Will Fear of Refugees Become the Status Quo in Czech Politics?”). As the European Commission takes steps to potentially punish three of the countries for refusing to follow a specific EU resettlement policy, the countries show no sign of backing down. But is there room for compromise?

Drawing a line in the sand

The European Commission announced it was taking the first step in infringement proceedings against three of the four Visegrad states –Hungary, Poland, and the Czech Republic – for breaching Council decisions regarding relocation of people seeking international protection or asylum from Greece and Italy. Slovakia, who has legally challenged the relocation order and only accepts candidates based on strict preferences, has faced criticism but no threats of infringement (yet). Although Visegrad-adjacent Austria has also refused to accept any transfers of people, they are also off the hook in this case because they promised to accept 50 people in May 2017, according to an EC report on resettlements.

The countries implicated have all separately reaffirmed their intention to defy any resettlement plan, despite the Commission’s warning of infringement. Warsaw quickly issued a statement in response the announcement, calling the Commission’s actions premature in light of pending cases with Slovakia and Hungary at the ECJ, stating, “Poland stands ready to plead its case before the Court of Justice.” Just last week, presidential frontrunner of the ANO 2011 party and current deputy Prime Minister Andrej Babiš told the Czech website Parlamentní listy: “As I said, I do not want a single refugee in the Czech Republic, not even temporarily.” And Viktor Orbán, Hungarian Prime Minister, connected his fight against resettling refugees to his ongoing efforts to stifle George Soros, telling students at a Hungarian cultural festival in Romania that Soros has been “using his money, people and institutions to transport migrants into Europe.” In the same speech, he said that Hungary would continue to endeavor to offer a “calm, Christian life” to its inhabitants and  “will not take in people who raise the concern in us that they will change our cultural identity.”

These public statements from Visegrad leadership are clear about what (or rather, who) they don’t want. But what do they offer as an alternative for handling migration on the European level?

What does Visegrad Want?

On July 19th, the Visegrad Group met in Budapest and issued a Joint Statement on Migration that outlined their position- not just what they stand opposed to, but what they offer as an alternative. In it, they reaffirm their commitment to a joint “consensus-based European solution” to dealing with migration. For the V4, the essential thing is to divide people seeking asylum from what they call “economic migrants”, a determination that they maintain should be made outside of EU territory but with the assistance of member states. Further, they write that any relocation schemes must be strictly voluntary, and the overall focus should be on preventing people from leaving their countries and entering Europe in the first place. The entire letter can be read here.

The tone of the letter is significantly subdued in comparison to what leading politicians have been telling their populations regarding asylum and Brussels, but that’s no reason to discard it. Let’s take a look at some of the key proposals and whether they are practical and further, whether they point to any areas that could lead to a compromise between the Visegrad Group and Commission.

1. Make asylum determinations outside of Europe

We believe that the precondition of any efficient strategy related to mixed migratory flows is to distinguish between genuine asylum seekers and economic migrants. The necessary assessments have to be completed outside the territory of the EU in administrative centres protected and supplied with the assistance and contribution of the EU and its Member States.

In order to deal with asylum “at the roots”, as they write, it is necessary to move the asylum process outside of EU territory. This proposal is a familiar one, as can be seen by our discussion of former French presidential candidate Marine Le Pen’s policy platform. There are several problems with this idea, but also an area of possible compromise.

One problem is the assumption inherent in this proposal that people migrating to Europe belong to either the category of asylum seekers or “economic migrants.” This division is confusing and artificial. In Europe, as all over the rest of the world, people migrate for a variety of reasons outside of seeking asylum. They may be seeking better opportunities and jobs, but they also might be hoping to reunite with a family member or loved one, access educational opportunities, gain medical treatment, or for any number of other reasons. They may not be able to access protection under the refugee convention, for instance, because authorities believe there are other safe areas to flee within their home country, but this doesn’t make their motives necessarily economic in nature. And importantly, it doesn’t necessarily mean they are not entitled to other forms of protection.

A second, stickier issue is the notion of completing assessments of people’s asylum claims outside EU territory. Nothing in EU or international law forbids the possibility of a state granting people asylum from a distance outside that state’s borders. In fact, countries do this all the time, often aided by government officials or NGOs within a country to identify people that can be transferred to another country to get protection.

The problem comes when this is posed as the only way of granting asylum. “Sequencing is crucial,” write the Visegrad Group, but legally, they have bound themselves to also accept refugees who apply from within their territory (as have all other European countries). The 1951 Refugee Convention and its follow up the 1967 Protocol both define refugees as someone who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The “outside their country” aspect is crucial. If countries were only willing to offer asylum to people who applied without leaving their own countries, then people would have to remain in a country where they are at risk while waiting for an answer- possibly facing death or torture. All V4 countries have signed both the 1951 Convention and its 1967 protocol (see UNHCR’s list of signatories for more details.) This binds them to accepting applications of asylum on their own territory, and to not “refouling” people (sending them back to places where they face persecution.) This definition of asylum as allowing people to leave their national borders to safety is also included within the Universal Declaration of Human Rights, which states “everyone has the right to seek and to enjoy in other countries asylum from persecution.” (The “seek” part is also important: it means you are entitled to ask for asylum, even if you don’t ultimately receive it.)

It should be clear that people needn’t remain in their own countries to seek asylum, and that the members of the Visegrad Group are obligated to process asylum claims of people who make it to their territory and ask for protection, just as the rest of Europe is. But so long as this is guaranteed, a compromise could see more asylum decisions being reached in sending countries, such as through embassies or special centers for that purpose, without excluding the right to seek asylum in the traditional way as well. This could indeed prevent people who have no viable claim for asylum from making perilous journeys while expediting the process for people who do have viable claims.

However, a major concern would be to ensure that assessments carried out abroad comply with legal standards and aren’t a way of moving the asylum process out of sight and out of mind.

2. Secure external EU borders

We need to be able to fully protect the external borders of the European Union. At the same time, we need to remove internal border controls. We need to make sure that no one can avoid being properly identified and registered before entering the territory of the EU.

This proposal also offers plenty of room for agreement with the rest of Europe. The idea of strengthening external border controls while providing free movement within the EU is an aspiration that is nearly universally shared. This can be seen by the dramatic budget and staffing increase over the last years for the European border agency Frontex, headed out of Warsaw, and increasing funds for Italy to manage asylum assessments (and deportations.)

However, the implication that everyone can be “properly identified” before entering the EU is problematic for a few reasons. First, as discussed above, its a right under international and European law to seek asylum in other countries. This right is not limited to those who are “properly identified.” In other words, providing ID is not a prerequisite to seeking asylum, and attempting to stop people from entering because they cannot provide ID might violate international law.

Throughout the asylum application process people are grilled on their stories and asked to provide as much evidence as possible to back up their claims of persecution and country origin. But it must be recognized that, when fleeing war or persecution, it is sometimes not possible to bring full documentation. For others, these important papers might be lost in transit. Still others might be stateless, in which case they may never have had proper identification documents to begin with. Any of these circumstances do not take away a person’s right to ask for protection.

3. Use aid to discourage “pull factors” and prevent people from leaving

We need a sustainable European solution with the long-term objective of a proactive involvement of the EU and its Member States in the most affected Third Countries of origin and transit including improving their living conditions.

The idea of preventing migration through increasing development aid is an unproven concept that has nevertheless been pushed by people as diverse as Jean Luc Melenchon in France and Mark Rutte in the Netherlands. The problem with the idea is that the EU already spend billions in development aid, but this aid may not reach people most vulnerable to persecution and war. Not to mention the fact that it does not address pull factors such as family reunification. Nevertheless, if aid is indeed aimed at improving living conditions and not at preventing people from leaving their country (as everyone is entitled to) then it is hard to see major downsides to ramping it up.

At the same time, there would appear to be room for improvement in this area from the states proposing the aid increase. The EU has targets for development aid to lower income countries known as “Official Development Assistance” (ODAs). In the latest Commission report on the subject (found here) it was noted that although progress has been made, the EU has not reached its collective goal of setting aside .7% of Gross National Income (GNI) for development aid.

The Visegrad states fall well below this goal, as well as below the less ambitious target set for countries who had joined the EU after 2002 (as all four Visegrad states did). The target for these countries was .33% of GNI, whereas all Visegrad states had reached between .12%-.14% in 2016.

So here too is an area of potential compromise: EU countries in general and Visegrad countries in particular could strive harder to reach their development assistance goals as part of an effort to improve living conditions in countries that currently experience high levels of emigration. But it should be remembered that development aid doesn’t end wars.

Can member states work together?

Looking at the migration policy proposed by the Visegrad states in Budapest, its possible to identify at least three areas where compromises should be possible:

1.) Provide additional means of applying for asylum from outside of the EU

2.) Continue to secure EU borders while supplying assistance for identification and registration of people seeking asylum at entry points to the EU

3.) Increase development aid, for instance, by getting closer to Official Development Assistance goals.

Interestingly, the viable parts of Visegrad’s migration platform all point to one thing: more money. There’s no doubt that providing more financial support up and down the asylum system can make a difference in how well the EU handles migration and asylum. But is it enough to replace the human aspect of accepting people into societies?

At the end of the day, no matter how much funding is offered and how many restrictions are applied, there are numerous people that are truly entitled to protection under laws agreed to in Europe for over half of a century, many of whom are already here. Increasing funds to prevent people from coming might be an area both sides can agree on, but it cannot possibly represent more than a partial solution to the current standoff over people already here and waiting for help.

 

Sources and Further Reading
Will Fear of Refugees Become the Status Quo in Czech Republic? MV
Relocation: Commission launches infringement procedures against the Czech Republic, Hungary and Poland. Press Release, European Commission. June 2017.
Pending Case: Slovakia v. Council. Info-Curia, European Court of Justice.
Thirteenth Report on Resettlement and Relocation, European Commission, June 2017
MFA statement on the European Commission’s decision to launch infringement procedures against Poland, the Czech Republic, and Hungary. Polish Ministry of Foreign Affairs, June 2017
Interview with Andrej Babis.  Parlamentní listy, July 2017.
Viktor Orbán’s answers to questions from audience members after his speech at the Bálványos Summer Open University and Student Camp. (Speech Transcript) Hungarian Government, July 2016
Joint Statement by the Prime Ministers of the V4 Countries on Migration, Visegrad Group, July 2017
Convention and Protocol Relating to the Status of Refugees, UNHCR
States Parties to the 1951 Convention relating to the Status of Refugees and the 1967
Protocol, UNHCR
The Universal Declaration of Human Rights, UN
Questions & Answers: the new European Border and Coast Guard Agency, Press Release, European Commission, 2016
Frontex to Get Budget Hike After Refugee Failures, EUobserver, 2015
EU unveils more measures to help Italy deal with Migrant Crises, Financial Times, July 2017
Council conclusions on annual report 2017 on EU development aid targets, European Commission, May 2017
Header image via Poland MFA on Flickr, http://bit.ly/2uumbVB (CC BY-NC 2.0)

 

Holocaust revisionist ‘gaffes’ hide policies that target both Jews and Muslims

US White House press secretary Sean Spicer has been the target of a media firestorm since his unfortunate remarks at a press briefing last week comparing Assad to Hitler, with Hitler coming out favorably. 

“We didn’t use chemical weapons in World War Two. You had someone as despicable as Hitler who didn’t even sink to using chemical weapons”…. “I think when you come to sarin gas, he was not using the gas on his own people the same way that Assad is doing.”

(He later apologized.)

The remarks were clearly inaccurate, given that Hitler indeed used chemical weapons and deployed them against his own people. But whether or not Spicer was aware of that and simply misspoke, or is poorly informed on the history surrounding World War II, it provoked us at Migration Voter to reflect on recent similar “gaffes” from far-right politicians regarding the Holocaust.

For instance, Front National’s Le Pen said during an event with Le Figaro in April:

I think France isn’t responsible for the Vel d’Hiv…. I think that, in general, if there are people responsible, it is those who were in power at the time. It is not France.”

Vel d’Hiv is the shorthand for an event that occurred during the Holocaust when 13,152 French Jews were rounded up by French police at the direction of the Nazis and sent to Auschwitz, where they were murdered. France has taken responsibility for the atrocity in the past, but Le Pen implied this was hurting French pride, saying “France has been mired in people’s minds for years.”

And Germany’s far-right Euroskeptic party Alternative für Deutschland attracted a great deal of negative press following a speech in January by state leader of Thuringia Björn Höcke in which he discussed Germany’s dealing with their role in the Holocaust, referring to the Memorial to the Murdered Jews in central Berlin as “a monument of shame.”

“We Germans… are the only people in the world who have planted a monument of shame in the heart of their capital city.” “We do not need any more dead rites in this country. … We no longer need hollow phrases in this country, we need a living culture of remembrance, which brings us first and foremost into contact with the great achievements of our ancestors.”

One of the reasons why the press has seized on these comments is because they supposedly give the lie to the strong stances these parties have each taken against anti-Semitism. These promises of being pro-Jewish and against forms of anti-Semitism have been coupled with a focus on casting Muslims, especially Muslim immigrants, as a threat both to Jews and to the nations in general.

  • Marine Le Pen of the Front National has promised numerous actions to target what she calls “Islamic fundamentalism”, proposing policies targeting mosques and Muslims (such as banning the hijab.) On the other hand, she has made conscious efforts to reach out to the Jewish community, banning anti-Semitic members of her party and sending FN party secretary Nicolas Bay on a goodwill trip to Israel. While there, Bay was interviewed by Haaretz (article behind paywall, but see Breitbart), where he made FN’s position clear: “[French Jews] understand that we’re the only ones who are clearly pointing to the source of the anti-Semitic attacks – the Islamists. Marine Le Pen has already said that the National Front is French Jewish citizens’ shield against these attacks.”
  • AfD takes a similarly strong stance against Muslims and immigrants from Muslim majority countries, stating in their program that “Islam does not belong to Germany” and introducing numerous policies against Muslim religious dress and immigration to Germany, while stating “ The AfD does not concur with the view which regards the criticism of Islam as islamophobic or being derogatory.” They have also spoken out often against anti-Semitism, however. For instance, in a press release in 2016 their Federal Councilor wrote, “The thought of what many of the Muslim immigrants bring along is characterized by anti-Semitism and the rejection of Western values…. Anti-Semitism must have no place in Germany. Many Muslims are still unaware of this and represent a danger to our values and our community.”

In short, despite statements that could be construed as Holocaust revisionism, the officials of the Front National and AfD have consistently been outspoken against anti-Semitism, claiming that their policies, by excluding Muslims and fighting “Islamism”, will be the best safeguard for Jews in their countries.

The complication with this argument, that the press has so far failed to discuss as far as we know, is that a large number of the policies aimed at excluding Muslim religious practices and Muslim immigrants would inevitably also target Jews, as well as other religious minority groups. 

Policies Targeting the Muslim Community that would affect the Jewish Community

Front National

Le Pen, for instance, promises to abolish dual citizenship (see presidential commitment number 27) for non-European holders of two passports. While this would no doubt affect a large population of French people with dual citizenship from Muslim-majority countries, she has stated that it would apply to Israelis as well. (Note, however, that we doubt this policy can go through as worded.)

In another example, Le Pen promises under the banner “Eradicate Terror and Break Up Islamic Fundamentalist Networks” that she will “ban foreign funding of places of worship and their personnel.” Although she explicitly mentions Islam in the title, her language clearly indicates (“places of worship”) this would apply to synagogues and Jewish religious activities (as well as other religious groups, presumably.)

Even more obviously, in her plan “to defend French unity and the national identity” Le Pen proposes constitutional and policy changes that would certainly apply to Jews, Muslims, and any other minority group.

Capture

It is difficult to parse what consequences these changes might have for religious minorities, but it would seem to change their constitutional status and ability to retain their own culture, if it differs from the majority culture. Commitment number 97 is particularly interesting, given Le Pen’s comments on France’s role in the Holocaust.

Additionally, Le Pen and FN have advocated for the elimination of any special religious dietary options in French public schools. In a 2014 interview, Le Pen outlined her position on the issue.

“We will accept no religious requirements in the school lunch menus,” Mrs. Le Pen told RTL radio. “There is no reason for religion [dietary options] to enter into the public sphere.”

This would eliminate any halal but also any kosher options. Therefore, if something banned by both Islam and Judaism – such as pork – was on the menu for that day, then pork is what Muslim and Jewish students would also be served. 

Alternative für Deutschland

In zeroing in on policies they hope will fortify and promote German “high culture” (Leitkultur) and move away from multiculturalism, AfD also promotes ideas that would harm German Jews as collateral damage in their fight against Muslims. For instance, in their platform (pg. 46), they state that German culture is composed of three main sources: Christianity, “scientific and humanistic culture” and Roman law, and that multiculturalism poses “a serious threat to social peace and the survival of the nation-state as a cultural unit”. Judaism clearly lies outside of their three main pillars of German society- does it also form a threat that must be protected against?

Capture

Under the section “End foreign financing of mosques” there are some additional provisions that would be problematic for the Jewish community. AfD calls for a ban on foreign financing of mosques, the banning of any language other than German spoke during religious services, and for imams to get government permission before preaching in Germany. It is difficult to see how these laws could comport with the German constitution generally, but if they would they would necessarily have to apply to all religious groups. This would disproportionately impact Jewish communities as it would ban foreign (such as Israeli or American) donations to synagogues, ban speaking Hebrew, and require visiting rabbis to get permission. German Christian congregations are primarily German-funded, speak primarily German, and are led primarily by German priests, necessarily making the impact of such policies far stricter on religious minorities and immigrant groups.

Again, its worth noting that many of these policies, as stated in their party program, are completely in contradiction with German domestic law and European Union law. However, whether or not they can be achieved, they allow insight into the stated aims and goals of the party.

Why analyze “gaffes” when the policies are clear?

Like with Sean Spicer’s remarks, the Holocaust revisionist statements by Le Pen and Höcke sparked minor scandals and caused many people to ask: were these accidental gaffes, or intentional anti-Semitic messages to voters?

In the case of the FN and AfD, it isn’t necessary to get at the innermost hearts and minds of the party elite via their speeches, because we have access to their direct, stated goals and programs.

If voters are worried about anti-Semitism in populist parties out of concern for its implications for the Jewish community if these parties were to come to power, it is very clearly worth understanding that many of the policies that are meant to target Muslims will harshly affect Jews as well as other minority religious groups, especially those with numerous co-religionists in other countries. Laws restricting the ability to dress a certain way, eat a certain diet or connect with (and fundraise from) people in other countries will evenly impact any person of faith connected to a minority religious group.

Voters who are concerned about anti-Semitism because of the historical context of what happens when a minority religious group is demonized and cast as a threat to the people and their national identity do not need to look too far to see that these parties already do precisely this with Muslims. For some people, that’s part of their appeal. For others, it may be a good reason to weigh their vote carefully.

 

Sources and Further Reading
Sean Spicer apologizes for gaffe” The Guardian, April 2017
Le Pen reopens old wounds” Reuters, April 2017
For Le Pen, France is not responsible for Vel’d’Hiv” Le Figaro, April 2017 (in French)
Vel’d’Hiv Roundup, Wikipedia.org
Chirac admits to France’s Atrocities During WW2 (video), Associated Press (1995)
Transcript of Höcke’s Speech in Dresden, Der Taggespiegel, (Jan. 2017) (in German)
144 Presidential Commitments (PDF), Front National 2017
‘We Just Want to Preserve Our Identity – Like Israel and Trump,’ Le Pen Party Official Tells Haaretz.” Haaretz (Jan. 2017)
French populists visit Israel to build relations“. Breitbart (Jan. 2017)
Manifesto for Germany- AFD party program (PDF), AFD 2017
Pazderski: Many immigrants bring along their anti-Semitic worldview. AFD Press Release (June 2016)
Le Pen Calls to Ban Special Dietary Restrictions, The Telegraph, (April 2014)
Cover image: Memorial to the Murdered Jews of Europe in Berlin. Via Olly Coffey on Flickr, http://bit.ly/2nY8ahi (CC by-NC 2.0)

Is the “Trump era” of immigration policy starting to take shape?

Someone who voted for US President Donald Trump on the basis of his promises to get tough on immigrants and refugees could be forgiven for being a bit disappointed some 80 days into his administration. Mexico does not seem any closer to paying for a wall, the “Muslim ban” failed to pass legal muster (as MigrationVoter predicted), and Trump seems to have abandoned, at least for the moment, promises to crack down on funding for sanctuary cities and overturn DACA. (This last one is a real tough one to swallow for anti-immigration advocates. As Mark Krikorian of Center for Immigration Studies writes on his blog, he expected to be disappointed, but not “for Trump to break an explicit promise regarding his headline issue on the administration’s first business day in office.”)

Past disappointments aside, yesterday gave some signs to advocates against immigration that Trump has not abandoned all of his anti-immigrant promises.

First, Attorney General Jeff Sessions, himself a well-known advocate of restrictive immigration policies during his senate years, delivered a speech to border enforcement in Arizona intended to outline coming changes to the immigration and border enforcement system.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

Sessions announced two types of changes: 1) new recommendations to federal prosecutors mandating prioritization of certain types of crimes, 2) reforms to immigration courts.

New Recommendations to Federal Prosecutors

The new recommendations will require federal prosecutors to consider filing additional criminal charges against undocumented immigrants they capture, including: transportation or harboring of immigrants, fraud and aggravated identity theft (if they uncover forged identity documents) assault on a federal officer, and felony re-entry.

⇒ So what does this really mean? Sessions is essentially instructing federal prosecutors to stack charges against undocumented immigrants as high as possible. If any felony charges stick, that person will be labeled a criminal illegal alien, which as we know, is the group this administration has promised to target for deportation. By pushing for more felony convictions, they widen the number of people who can be considered “criminal aliens” and can make it more difficult or impossible for these people to ever return to the US.

Since these are recommendations, it is obviously at the discretion of prosecutors to push for multiple counts against undocumented migrants in their jurisdiction (and each count takes time and evidence to back up and litigate.) So to ensure that no prosecutors are tempted to ignore these guidelines out of disinterest or convenience, the DOJ has thrown in an additional component: all 94 district attorney’s offices (not just those from border areas) must now appoint a Border Security Coordinator – to headline the efforts against undocumented immigrants. If this is someone’s entire job, they are certainly more likely to prioritize the DOJ’s recommendations and try to convict undocumented immigrants of as any crimes as possible.

Changes to Immigration Court

Sessions announced a new streamlined procedure to appoint more federal judges to immigration benches, with the goal of hiring 50 this year and 75 next year to help reduce the backlog of immigration cases. In addition, all immigrants apprehended at the border will now automatically be sent to detention centers, where judges will directly come to them to decide their fates. For this, he promises to hire 25 new judges. (Note: This backs up an earlier memorandum from Department of Homeland Security calling for detention for all apprehended immigrants and more judges and officers, but it still isn’t clear whether this changes Trump’s federal hiring freeze for other kinds of supporting employees judges may need.)

⇒ So what does this really mean? People on both sides of the immigration debate agree that there is a need for a higher number of qualified immigration judges to ensure that people in immigration detention and awaiting decisions on asylum claims can have their claims adjudicated more efficiently. A “streamlined” procedure for hiring raises eyebrows, in that some may question whether it will be possible to get the best-qualified candidates to judge incredibly complex immigration cases in an abbreviated procedure. Given that under the existing system judges have faced criticism in the past, who knows whether or not this will be a downgrade. We’ll have to wait and see on that one.

The potentially more interesting aspect is the 25 new detention center judges. Unlike criminal charges, immigration offenses do not typically entitle the accused to a lawyer. Having adjudication take place directly at the detention center decreases the likelihood of an individual being aware of their rights, such as the possibility of seeking asylum or applying for temporary protection or a special visa (like Special Immigrant Juvenile Status.)

It also raises concerns about the circumstances of detention. Automatic detention for everyone would presumably include children, and there is some question to the legality of this under international law (see, for instance, here and here.)

Newcomers to DHS from the Anti-Immigrant Community

Aside from Sessions’ very clear statements yesterday in Arizona, we received another hint this week at the Trump administration’s intentions to get tough on immigration. The Department of Homeland Security hired two high-profile advisors linked to the group FAIR and think tank Center for Immigration Studies. Both organizations were founded by the far-right anti-immigration activist John Tanton, and support policies like an end to birthright citizenship and heavily reduced legal immigration, as well as much stricter enforcement of existing laws.

According to the DHS spokesman, as reported by CNN Jon Feere, formerly of CIS, has been hired as an advisor to the director of ICE. Over at Customs and Border Protection, Julie Kirchner, the former executive director of FAIR, has been hired as an advisor to the commissioner. We’ll take a deeper look at the implications of these choices later in the week, but for now its worth noting that Trump’s once stalled plans on immigration seem to be moving along once more, and their direction is quite clear.

Sources and Further Reading
Injunction against Travel Ban- Granted (Hawaii et al v. Trump) US District Court of Hawaii, March 2017
Foreign Minister said Mexico not paying for wall- Mark Rubio on ABC NEWS, April 2017
Sanctuary City list on hold – Washington Times, April 2017
Declined Detainer Outcome Report- Suspended, Immigration and Customs Enforcement
Will Trump go forward with a Muslim Ban, and if so, how?” MV, Jan 2017
Is Trump going to cancel DACA or not? Mark Krikorian, CIS, Jan 2017
Sessions on immigration– OntheIssues.org
Full remarks of Attorney General Sessions, US Dept. of Justice, April 2017
DHS Memo on Implementing Border and Enforcement Policies, DHS, Feb. 2017
Presidential Memorandum Regarding Hiring Freeze, White House, Jan. 2017
Hard-line anti-illegal immigration advocates hired at 2 federal agencies, CNN, April 2017
(Image via Gage Skidmore on Flickr, http://bit.ly/2oXE0e8, (CC by SA 2.0)

The Far-Right’s Coalition Conundrum

As elections approach in the Netherlands, France and Germany, people interested in immigration issues are no doubt focused on the chances of the far-right parties, whose platforms focus explicitly on reducing flows of immigrants and refugees. The Dutch Partij voor de Vrijheid (PVV) has promised to reduce immigration of Muslims, leave the European Union, and strengthen borders. The Front National‘s (FN) Marine Le Pen has similarly proposed a Brexit-like referendum to leave the European Union and opposes immigration of refugees and EU migrants into France. And Germany’s Alternative für Deutschland (AfD) calls for closing German borders to Europe and revamping the law to reduce asylum.

All three of these parties have seen major increases in popularity in their home countries, with both PVV and FN leading in some polls, while AfD, although losing a bit of support, is still making a very strong showing considering the relative newness of their party and their position in comparison to more established national parties such as the Greens. As a result, some are saying that, after Brexit and Donald Trump’s victory in the US, Europe should be prepared for a big upset. Continue reading

Will Trump go forward with a “Muslim ban”, and if so, how?

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Image via Flickr http://bit.ly/2j5kmd7 (CC BY-NC-ND 2.0)

US President-elect Donald Trump campaigned extensively on immigration issues, highlighting his intention to build a wall at the border of Mexico and deport large numbers of undocumented migrants throughout the campaign. In December of 2015, shortly following the Paris terror attacks, he issued a press release entitled “Donald J. Trump Statement on Preventing Muslim Immigration” in which he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

Despite the seemingly clear “Muslim ban” statement from 2015, with its background of the CSP’s survey, Trump’s position appears to have evolved if one looks at the positions taken on his website and by Trump campaign spokesperson Kelly Anne Conway. On December 22, 2016 Conway told CNN’s Chris Cuomo that Trump will pursue a policy of extreme vetting that will be country-based, rather than based on religion and that the policies outlined on his website back this up. “I am asking whether being a Muslim will be a trigger, that’s my question, simple,” said Cuomo, to which Conway responded, “No, no its not.”

Looking at Trump’s website for clarification, we find multiple policy proposals pertinent to immigration but few directly concerning Muslims (other than the Dec. 2015 statement). Under “Foreign Policy and Defeating ISIS,” he promises to:

“Suspend, on a temporary basis, immigration from some of the most dangerous and volatile regions of the world that have a history of exporting terrorism.”

Under the section “Immigration,” Trump outlines numerous proposed changes to immigration policies and comes once again back to vetting, proposing that the US:

“Vet applicants to ensure they support America’s values, institutions and people, and temporarily suspend immigration from regions that export terrorism and where safe vetting cannot presently be ensured.”

So just drawing from Trump’s own published statements, we have three clear possibilities:

  1. Banning certain types of migration on the basis of religion  
  2. Banning certain types of migration on the basis of national/ regional origin
  3. Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions

Let’s examine each possibility in turn.

1. Banning certain types of migration on the basis of religion

At this point, this seems the least likely possibility given Conway’s denials that being Muslim will be the trigger for exclusion and the scarcity of statements to this effect on Trump’s website (aside from the first one from over a year ago.) But if Trump wanted to ban migration to the US of any Muslim person, even temporarily, would this be possible?

The US Constitution bars discrimination on the basis of religion under the 1st and 14th amendment, and any federal laws that infringe on fundamental rights (such as those in the Bill of Rights) or suspect classifications (such as a particular religious minority group) are judged under the “strict scrutiny” test (see US v Carolene Products, footnote 4). The strict scrutiny test requires that a government law affecting fundamental rights or certain types of minorities (such as religious groups) must serve a compelling interest, be narrowly tailored to meet that interest, and be the least restrictive means of achieving that interest. In other words, a law that would potentially discriminate against a minority group must be practically the only way possible of achieving some need of dire importance to the government. In this case, Trump would likely argue that restricting immigration of Muslims is the best way of achieving the direly important security need of protecting the US from terrorism. While preventing terrorism is no doubt a crucial interest, one can easily point out the flaw in this argument- Muslim immigrants are not the only ones or primary ones who commit acts of terrorism in the US (the majority of U.S. terror acts since 2000 have been carried out by citizens or residents, with around a third being right-wing terrorism), and the vast majority of Muslims have no connection to radical terrorist groups, so the law is probably not narrowly tailored to achieving its means.

But, not so fast. These constitutional protections apply to US citizens, who almost certainly could not legally be barred from traveling and re-entering the US under any “Muslim ban.” But what about non-citizens, such as people wishing to reunite with family members, join a partner, do business, or seek asylum in the US? While the Supreme Court holds that Equal Protection applies to non-citizens, even undocumented migrants, within the US (see Plyler v. Doe at 210) people trying to enter the country are probably not granted the same protection, as multiple presidents in the past have banned groups based on national origin (Iran, Cuba to name a few.)

The real problem with such a ban would likely be the inability of Immigration and Customs Enforcement to identify Muslims.There are some 1.6 billion Muslims in the world and they live in most of the world’s countries and belong to every race. Like with any religion, it would be impossible to pick them out solely using last names, language spoken or country of origin without catching many other people up in the dragnet- like, e.g., Arab Christians, or Sikhs who are often mistaken for Muslim- and missing many others.

Any attempt to determine religion – for instance, by immigration agents asking would-be entrants what religion they are- would clearly be about as effective as previous attempts to sniff out communists (“Are you now, or have you ever been a member of the communist party?”). People could lie out of a variety of motivations, not least of which because they feel unclear about their religious identity, as many do, or because they consider religion a private matter.

Another possibility would be religious profiling- rejecting visa requests, etc, from persons who officials suspect of being Muslim, based on perhaps last names or national origin. But aside from being ineffective, as discussed directly above, any unofficial, behind the scenes profiling would not achieve the effect of pleasing Trump’s supporters, who will probably be looking for hard policies and not secret, implied religious or racial profiling (which at any rate already openly exists at borders).

So an outright Muslim ban, while perhaps not unconstitutional, would prove extremely complicated to enforce and an unlikely choice by the President-elect.

2. Banning certain types of migration based on national/ regional origin.

As discussed above, a move like this has historical precedent and is potentially achievable. But here too, there are problems.

First, as Trump has made clear that his intention is to bar Muslims or at least practitioners of “radical Islam,” there is an issue of which regions or countries could effectively be banned. At first glance, we can see that Muslims make up large segments of the population in Africa, Asia, the Middle East and Europe, as well as Canada. Banning migrants from those countries on the basis that they might be radical Muslims would effectively ban immigration from all but Central and South America, a scenario which seems unlikely to be appealing to Trump, who started his campaign talking about the dangers posed by Mexican immigrants.

If, as in his later statements, Trump wants to ban immigrants from areas that are known for fomenting extremism, it will also be difficult to create a narrow list. As the International Centre for Counter-Terrorism has reported, circa 4,000 EU citizens have traveled to Syria or Iraq to join IS, some 30% of whom have returned to their home countries. The largest number of these are Belgian, French, German, or British, with the highest number coming from Belgium.

If Trump will indeed ban people from “regions of the world that have a history of exporting terrorism,” its difficult to imagine how he can avoid banning immigration from Europe, or at the very least, Belgium, France, Germany and the UK. Such a ban could potentially have a severe impact on relations with America’s close allies in the EU, or result in reciprocal bans for American travellers to Europe.

3. Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions

As with the first two proposals, this one suffers from an overbroadness. Pursuing extreme vetting against regions that “export terror” will once again have to include European nations, as well as Africa, the Middle East and Asia (particularly Southeast Asia.) Once again, this will mean strict vetting for virtually the entire world, aside from Latin and Central America. As many parts of the world are already subjected to strict vetting, (especially asylum applicants) we will have to wait for further details to determine how President-elect Trump’s plan will go above and beyond this, and how it will determine whether entrants “support America’s values, institutions and people.”

CONCLUSION

A few weeks out from inauguration it still remains to be seen how active Trump will be in his first 100 days, and whether he’ll be able to move forward on keeping his immigration-related promises. However, it is clear that any plan to ban or limit Muslim migrants or migrants from “terror-exporting regions” will require much more thought if it will pass constitutional muster, be stronger than what we already have, or not turn into an all-out immigration ban. We’ll be staying tuned to see if and how Trump attempts to strike a balance.


READ MOREsources and further literature

The Official Donald J. Trump Homepage
“Trump calls for ban on Muslims, cites deeply flawed poll” -the Bridge Initiative
“Strict Scrutiny” from the Legal Information Institute at Cornell
Terrorism In America from New America thinktank (Datasets are downloadable for analysis)
Plyler v. Doe from Migration Policy Institute
Jimmy Carter’s Sanctions Against Iran (includes ban on entrants from Iran)
Racial profiling will still be allowed at airports, along border despite new policy” The Washington Post from 2014 (cites DHS and Justice Department regulations)
The Foreign Fighters Phenomenon in the EU” from International Centre for Counter-Terrorism
“Isis in the Pacific: Assessing Terrorism in Southeast Asia and the Threat to the Homeland” from the Brookings Institute
Screening Process for Refugees Entering the US (Infographic)” from the White House

This article is analysis and thus contains the author’s opinion backed up with links to reliable sources. You are welcome to challenge our perspective in the comments.