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 final instalment of Border Criminologies’ themed week on the Lawlessness of the Refugee crisis organised by Jaka and Mojca.

This final instalment of our themed week on ‘The lawlessness of the refugee crisis’ builds on the basic idea discussed in the previous parts, that unlawfulness and arbitrariness are firmly embedded in the management of mass migratory movements through the Western Balkans migration route. It focuses on the legality and arbitrariness of treatment that Slovenian authorities afforded to the most vulnerable groups of refugees and migrants, especially to unaccompanied minors. These issues were also part of our monthly reports to the European Union Fundamental Rights Agency (FRA).

Who do we consider to be vulnerable persons?

In asylum law, legislators and courts across many jurisdictions have long afforded vulnerable persons a special status in order to ensure their equal legal protection. This special status has primarily been reflected in reception conditions and, to a limited extent, in the procedural guarantees of the asylum process. The obvious and most important consideration is the question about which circumstances induce such vulnerability in people for them to qualify as vulnerable persons and be granted different treatment compared to other asylum seekers.

According to EU law, the answer is reasonably clear. Article 21 of the Reception Conditions Directive defines ‘vulnerable persons’ as including, but not limited to, minors and unaccompanied minors, disabled people, the elderly, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses or mental disorders, and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. In Slovenia, this same definition was included in the International Protection Act. Moreover, the law recognises the general principle of granting special protection to vulnerable individuals in any police operation.

Overall estimates show that about a third of people who passed Slovenia through the corridor were children (Photo: Borut Krajnc)

What was recorded on the ground during the operation of the corridor, however, is a very different story. To begin with, there were no formal identification procedures in place  for individuals who could qualify as vulnerable and needing special treatment, rendering them unprotected in the system. This, in turn, was responsible for a number of arbitrary practices. For instance, reports from the field in December 2015 indicated that while the police granted special treatment to families and the elderly in registration procedures, identifying other groups as vulnerable depended entirely on the discretion of police officers on duty. Moreover, while in January 2016 the police became generally more open to granting special treatment to vulnerable groups, there were individual cases of blanket and arbitrary denial of access to special treatment. Thus, it can be argued that the rule of authority replaced the rule of law in Slovenia in dealing with vulnerable groups (in addition to replacing it in dealing with the issue of detention). To fill in this void, a number of NGOs took over the task of identifying these individuals to put pressure on and persuade the authorities to grant them priority treatment.

What to do with unaccompanied children?

Unaccompanied children are possibly the most vulnerable group in any legal setting and are thus afforded special status in international, EU, and domestic law. States and their competent authorities must act in the best interest of the child at all times. Mass migration and the existence of a humanitarian corridor present an extra challenge for authorities, but do not absolve them from carefully considering what those interests might be.

The basic issue authorities and NGOs had to deal with was whether letting unaccompanied children be part of the corridor and travel onwards was in their best interest or not. Generally, Slovenian law provides for the appointment of a guardian for every unaccompanied minor in immigration and asylum cases. This ensures minors’ protection and exercise of their rights. Being accompanied by a distant cousin or a neighbour could suffice for the migrating child and her/his parents as effective protection, but it does not formally comply with European law. More importantly, it can be sometimes hard to distinguish between a friend of the family and a smuggler. This presented a conundrum to the Slovenian authorities in which separating the child may cause much distress and is probably not in their best interest, but on the other hand not separating them disavows legal requirements and in the worst case scenario allows for further exploitation of this vulnerable group. In practice, the authorities failed unaccompanied children, who were subject to arbitrariness and unlawfulness, inherent characteristics of the humanitarian corridor.

For example, as we argued in Part II, just like every other person travelling through the humanitarian corridor, children were de facto detained when transported from Croatia to Austria. Furthermore, despite clear provisions for the appointment of an appropriate guardian, during transportation, the police and the military were responsible for looking after these children, which is in direct opposition to a clear legal requirement. 

Further, in reports we received in December 2015, people in the field claimed that every now and then, the police took some unaccompanied children from the corridor, disallowed their further travel, and placed them in immigration detention in Postojna. This shocking practice seemed to have continued until at least January 2016 since reports coming from different NGOs on the ground on the extent of such arbitrariness after this period are conflicting.

Lessons to be learned

We began this themed week by criticising both the Slovenian government and the European Union for not seeing or not wanting to see the foreseeable; that an almost unprecedented number of refugees and migrants were soon about to cross the Mediterranean with hopes of reaching the EU. As a result of this, we argued, the competent European and state authorities failed to prepare adequately for what happened in the second half of 2015, both in terms of operational and practical capabilities, and in terms of legislative solutions. This led to responses, both on the EU and domestic level, which gave a dangerous amount of power and authority to the police and the military, who were working on the ground lacking any clear legal framework. Obviously, such a situation was not only detrimental to the rights of refugees and migrants, but also a precarious way for a state system to operate in.

During mass migration through the Western Balkans, images such as this one from the dystopian movie Children of Men nearly became the order of the day.

http://www.imdb.com/title/tt0206634/

Today, Europe is still sleepwalking. Since the Western Balkans migration route closed in early 2016, very little has changed. At both the domestic and European level, there are still no legislative solutions that would permit the EU and member states to handle mass migration of the kind we witnessed less than a year ago within some thought-through legal framework. That is despite the fact that the numbers of people attempting to reach the EU everyday are still far from negligible. Worse still, the only proactive approach taken by the EU to prevent (not manage!) migratory movements thus far, the infamous EU-Turkey deal, is at risk of falling apart. This makes the surge in casualties in the Mediterranean we witnessed immediately after the closure of the Western Balkans migration route more and more likely to happen again in future.  

Needless to say, such negligence in drafting and passing appropriate legislative solutions to prepare for potential new crises of this magnitude is an extremely dangerous occurrence in terms of jeopardising the respect for the rule of law and most of the ideals the EU holds dear. What is arguably acutely worse, however, is that such passiveness further yet again endangers the most fundamental rights of individuals who will be seeking a safer life within EU’s borders. It is high time for the European Union and member states to recognise this reality and act appropriately in order to ensure that, this time, history will not repeat itself.

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