Guest post by Jaka Kukavica and Mojca M. Plesničar. Jaka is a student at the Faculty of Law, University of Ljubljana and a research assistant at the Institute of Criminology. Mojca is a Research Fellow at the Institute of Criminology at the Faculty of Law and Associate Professor at the University of Ljubljana, Slovenia. Her areas of teaching and research are mainly in the fields of sentencing and punishment, but also include issues of age, gender and nationality in connection to crime and punishment as well as the uses of new technology in these fields. They were both part of a project at the Institute reporting on the flow of migrations from October 2015 to June 2016 for the European Union Agency for Fundamental Rights. This is the first instalment of  Border Criminologies’ themed week on the Lawlessness of the Refugee crisis organised by Jaka and Mojca.

In July 2015, the Slovenian government announced a contingency plan that laid out its response strategy to the refugee crisis. However, it soon became clear that things were about to go awry. The plan set out the government’s intended response to the three scenarios it had considered feasible: Scenario A, in which 203 to 280 people would seek protection in Slovenia; Scenario B, dubbed as “an extraordinary increase in arrivals,” in which 280 to 500 people would seek international protection; and, finally, the extremely unlikely Scenario C, in which more than 500 people would seek international protection in Slovenia. At the time, the Ministry of the Interior seemed particularly fond of the plan, proudly referring to it in responding to criticism that the government had not properly prepared for the refugee crisis.

However, merely one month after the contingency plan was presented, thousands of people were already camping out in the open at the Budapest Keleti train station, a two-and-a-half-hour drive from Slovenia. At the same time, Hungary’s Prime Minister Victor Orban was rushing to complete building the fence on its borders with Serbia and Croatia and thus prevent refugees from entering Hungarian territory. As a result, the “Western Balkans migration route” leading refugees from Greece across the Balkans to Germany and Nordic countries shifted from Hungary to Slovenia in mid-October 2015.

The contingency plan of July 2015, published by the Slovenian government, revealed the government’s unpreparedness for the refugee crisis. The figure of about 500 asylum seekers considered by the government as “extraordinary” was reached and surpassed in a matter of hours. By the time the Western Balkans route closed in March 2016, over 477,000 people – a number almost a thousand times greater than 500 – had crossed the Slovenian border. While the contingency plan turned out to accurately predict the sum of people who would seek international protection in Slovenia, it severely underestimated, the number of people who would cross the border and need temporary assistance and accommodation. The government had simply assumed that authorities would return anyone who irregularly arrived in Slovenia back to the bordering country of entry as per regular procedure either according to the Dublin regulation or bilateral readmission treaties. But as the events unfolded and the number of people crossing the Western Balkans route skyrocketed in a matter of hours, Croatia refused to readmit any migrants, and Slovenia had temporarily to accommodate and feed 477,000 more people than they had envisaged.

The crisis

In a matter of days, long queues of migrants measured in thousands started to pass Slovenia. This picture played a rather controversial role in the Brexit campaign, but the original was taken at the Croato-Slovenian border (Photo: Jeff J Mitchell/Getty Images)

The fact that the government had no feasible plan to manage mass arrivals had a large operational impact on the police, volunteers, and other stakeholders on the ground who faced immense difficulties in controlling the situation that had ensued. But perhaps more importantly, the short-sightedness of the Slovenian government, as well as (and in some areas mostly) the EU, also meant that no regulatory or legislative framework was in place to permit the competent authorities in member states to manage those who arrived. EU and domestic asylum and immigration legislation was not drafted, debated, or passed with extreme scenarios in mind and legislative solutions for such extraordinary events were non-existent (and to a large extent remain so). As a result, the police and other stakeholders were forced by the situation on the ground to act in a limbo of ambiguity and lawlessness. This occurred in a number of important legal areas in which there should be no room for arbitrariness, such as border policy (including asylum and immigration), detention, and the best interest of the child principle, which we will cover in this theme week.

The corridor

As the vast majority of refugees and migrants wished to seek asylum or settle in Germany or Nordic member states, they enjoyed a de facto humanitarian corridor to Germany. This meant that Croatian authorities would transport them to the Slovenian border, where Slovenian authorities would admit them, register them, and then transport them to the Austrian border. Austrian authorities repeated the process before finally transporting anyone who would not seek asylum in Austria to Germany.

This map shows the Western Balkans migration route

Leaving aside the question of whether it was lawful for Slovenian authorities to permit refugees and migrants to cross the Schengen border between Croatia and Slovenia, once they had decided to admit them, immediately transferring them to the next border with Austria was not an option foreseen by the law. At that point, had they followed EU and national law, the Slovenian authorities would have had to identify and initiate asylum procedures for those seeking international protection in Slovenia. They would then have had to determine whether other migrants (i.e. those not seeking asylum) had legal grounds to enter Schengen territory (pursuant to Article 5(1) of the Schengen Border Code). If not, the Return Directive and bilateral readmission treaties would have come into play and return procedures would have to be initiated. It is indisputable that there is no legal ground for the establishment of a corridor of the kind that was created and operated for nearly half a year (p. 41).

We do not wish to argue that creating the corridor was wrong, quite the contrary. EU member states on the Western Balkans migration route had no choice (unless they wanted to take Hungary as a role model) but to create a corridor given that at some point more than 10,000 people were crossing their borders per day. This sheer number of people together with the reluctance by other member states to readmit people in return procedures called for such action. Insisting on regular procedures in such irregular circumstances would have overwhelmed the system. In addition, humanitarian voices pointed out the vulnerability of the refugees and migrants and the need to respect their human rights. In an interesting, but not unprecedented twist of fate, not following the rules, this time meant doing the right thing.

And yet, Slovenia and other member states had no legal basis for their actions. While letting people through seemed the most pragmatic as well as the most humane course of action, the lack of normative basis led to several problems. The lack of vision and preparation led to hastened decision-making on the ground and in the early days, when masses of people started to cross the Croatio-Slovenian border, many mistakes were made. At an early point, for example, a large group of refugees was forced to spend the night outside in the rain and cold at the border as they were initially refused entry. Later on, with the situation at the Croatian border slowly setting due to a better cooperation of authorities, new problems emerged at the Austrian border and people were left in no-man’s land for extended periods of time.

Throughout the crisis, the Institute of Criminology in Ljubljana reported on these and other issues to the European Union Agency for Fundamental Rights (FRA) in Vienna, which collected and published weekly and then monthly reports on the respect of human rights of migrating people by experts in all member states involved in the Western Balkans route. Our reports were not always positive. The sudden arrival of numerous people stirred emotions and fears among the locals and their responses were often defensive and hostile. Vaguely concealed or outright racist and xenophobic remarks were featured regularly in public discourse, especially on the right of the political spectrum. On the other hand, there was prompt and compassionate action on the side of many individuals and NGOs, who rose to the challenge of helping thousands of people in what were early on very uncertain conditions. However, the situation was indeed very tense and the lack of legislation, combined with the lack of vision and the initial reluctance to deal with the issue on the side of the government made a bad situation worse.

We will address some of these issues over the course of this themed week. The second instalment will examine the lawlessness of limitations on freedom of movement and illegal detention as they arose during the crisis, in large part due to the existence of the humanitarian corridor. In the third and final instalment, we will discuss the principle of the best interest of the child in light of the refugee crisis and the issue of arbitrary behaviour of the authorities that was prevalent during the time of a mass movement of people.

These are just some of the important topics that need to be addressed with regard to the refugee crisis. The crisis was as much a result of mass migration as it was a result of the failure to address it in a moral and ethical way. Given that the law was of little help, as we will explain in more detail in the two following posts, one would wish individual states and the EU as a whole were more determined to address acceptable and especially unacceptable concerns of the public and uphold the ideas of universal human rights. Sadly, we do not think this was the case.

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