The Place of Numbers in Migration Debates
The governance of migration, in particular of asylum migration, is caught in the contrast between the political relevance of numbers, and the individuum-based structure of the law. For politics, it matters how many persons arrive, require shelter, enter procedures. For the legal assessment, however, numbers mostly do not matter: The right not to be rejected at the border, the right to access an asylum procedure and to shelter during that procedure are individual rights that are independent from the overall number of arrivals. This contrast is visible in periodical debates about a maximum number of asylum seekers per year, or proposals to abolish the individual right to protection altogether. Such proposals disregard that individual rights to protection are enshrined not just in constitutional law, but also in European and international law, and for good reason. However, it is worth taking the perspective of numbers seriously – while respecting the individual right to protection.
Numbers Matter Already
International migration law is mainly the law of forced migration. There are some rules in the area of labor migration, such as the ILO Migrant Workers Convention. Mostly, however, states regulate migration independently and are bound by international rules only if migrants face serious threats to their fundamental rights. Obligations from international refugee law and from human rights treaties such as the European Convention on Human Rights therefore structure the governance of migration: States have far-reaching obligations to not reject persons at the border, and to assess the persons’ individual circumstances and possible violations of fundamental rights if they were returned to another state. Without going into the contested details of those obligations towards migrants: at the outset, the number of migrants does not matter for their rights. Rights are based on the individual situation. Therefore, a numerical cap for receiving asylum seekers would conflict with constitutional, European, and international law.
There are, however, already several points where the logic of numbers enters the otherwise rights-based logic of the law. A first example: the mass influx directive. In the case of Ukrainian refugees, EU member states decided to activate the temporary protection directive, which governs “temporary protection in the event of a mass influx of displaced persons”. Obviously, it was not only the number of Ukrainian refugees but also wider political reasons that led to the activation of the directive. Nonetheless, it is remarkable that the “mass influx”, the high number of arrivals, in that sense opened the path for a simplified procedure of reception, and for advantageous conditions in access to education, permissions to work, and freedom of movement.
A second example shows that the number of arrivals is also used to justify more restrictive measures. As I have discussed elsewhere, the judgment in N.D. and N.T. v. Spain drew on the number of arriving migrants: the Grand Chamber of the European Court of Human Rights argued that the migrants trying to reach Spain “took advantage of their large numbers”, which became one factor in limiting their rights under the Convention. More often, the numbers of arrivals are not explicitly referenced in decisions but form an influential background.
There are regular statistics about the number of arrivals, even though such statistics can be misleading due to the way of counting. The constant perception in past years has been that there are too many persons arriving. This perception is supported by the images of overcrowded boats, overcrowded reception centers in Lampedusa, or overcrowded camps on Greek islands. Such images result not just from numbers of arrivals but also from the politically chosen conditions: conditions of how migrants can arrive, how they can move after arriving, what housing they can access. The large numbers of arrivals pose real challenges yet states also set conditions in a way that concentrates migrants in certain places and aggravates their situation. In that sense, the perception of too many arrivals is both cause and consequence of Europe’s governance of its borders.
Taking Numbers Seriously in Migration Debates
Numbers matter and should therefore be part of the debate. At the moment, the debate of migration is often caught in an either-or: either a disregard for the importance of numbers, or a disregard for the value of a system based on individual rights. The discussion of migration through the lens of human rights alone is insufficient. But taking numbers into account should not be used to question individual rights to protection.
What would taking numbers seriously then mean for migration debates? It means, firstly, planning with, not against migration. The exact number of arrivals is not foreseeable because it depends on why people flee. As much as it is desirable to address root causes for displacement, it is no alternative to the immediate protection that people require – and that they are guaranteed under international law. Therefore, planning with, not against migration means realistic prognoses of the number of arrivals, and systems for accommodation and administration that include an additional margin. When systems are overwhelmed and places of reception overcrowded, it is not just a consequence of more persons arriving, it also is a consequence of planning with lower capacity. In 2016, the threshold discussed for the number of asylum seekers per year in Germany was 200.000. While a fixed threshold for receptions is, as said, incompatible with the law, it is noteworthy that in the following years, when the number of claims fell well below 200.000 per year, little was done to build or keep up capacities.
Secondly, taking numbers seriously means putting the question of responsibility-sharing at the center. This is directly related to the first point. As long as states treat the arrival of asylum-seekers as something to avoid, the debate about responsibility-sharing remains in a stage of denial about the extent of responsibility. The reforms of the European asylum system are an exhibit to this problem. While the problem of unequal distribution of responsibility (both legally and factually) was a core concern and motivation in the beginning, the new solidarity mechanism ultimately fell short of serious changes to the status quo. Instead, the reforms focused on attempts to lower the overall number of arrivals, with screening procedures and longer detention at the external European borders. These elements of the reform have been the subject of significant criticism, and it remains to be seen if their implementation can achieve the purported goals while respecting the fundamental rights of migrants.
Too Many Migrants, Too Few Immigrants
Alongside lamentations about the arrival of “too many” asylum seekers, there are now regular calls for more immigration. 1,5 million immigrants per year would be necessary for Germany, stated the economic expert Monika Schnitzer recently, to maintain Germany’s working population. The endeavor to attract more labor immigration is clear from recent reforms in Germany (see here for a discussion). There is not just a shortage of highly skilled workers, but a shortage of staff in general. This shortage will increase without significant immigration – a simple demographic prognosis. Germany’s rate of around 1,5 births per woman is the European average, and significantly below replacement rate. Taking numbers seriously also means including a demographic perspective in migration debates, one that encompasses forced migration as well as labor migration.
A demographic perspective cannot override the rights-based logic of refugee law: people’s access to protection does not and should not depend on whether they are “needed” or “useful” for the receiving state. Yet a demographic perspective can complement the rights-based logic in migration. Especially where the contrast between economically desired immigration and efforts to prevent immigration is so acute. It is not sound to categorically separate demands for labor immigration and asylum migration, and a shift towards easing this separation is slowly taking place. Expanding pathways for labor migration also benefits those who need to flee. Vice versa, the demand in immigration does not have to only mean attracting trained workers from other states. It is more realistic – and fair – to also try to meet this demand by offering people relevant training once they arrive.
Demographic Developments Matter
Demographic developments matter, and not just from an internal perspective of one state. A global demographic perspective should have a place in thinking about migration governance, too. References to global demographic developments often come from those with Great Replacement anxieties. For instance, Michel Houllebecq warns of a “suicide of the West”, referencing the low birth rates in European states in contrast to the high birth rates in African states. If one looks at demographic developments without racist fears, however, there is no reason why the changes in global population distribution should not result to some extent in migration.
When Europe was experiencing a period of enormous population growth in 19th century, this resulted in large-scale emigration. Between 1850 and 1913, around 40 million persons emigrated from Europe, mostly to North America. In other parts of the world, the periods of significant population growth came later. Yet, when the tides changed regarding where populations were growing, the reasoning about legitimate migration also changed. In the United States, an immigration law with strict quota was adopted in 1924. At the 1927 World Population Conference in Geneva, “International migration and its control” was on the agenda. This is not the place to discuss the historic connections of population growth and migration control (as I do here). The argument is not that regional population growth should be seen as a legitimate reason for emigration. Rather, it is a call for a realistic perspective on future migration that takes demographic developments into account.
Demographic prognoses are too significant to be left to racist fearmongers. The unequal population developments in the world should not be reason for concern over immigration, but reason to expect and organize migration. Africa is the continent with the highest (though declining) average rate of births – around 4,3 births per woman, and with a fast-growing population in consequence. (Obviously with significant diversity among African states.) Population growth is not an immediate cause of emigration but can correspond to increased emigration through a set of social conditions such as the working age population far outnumbering available jobs. Demography already forms part of migration governance, for instance as an element of setting quotas for reception. It should be part of thinking about migration governance – in terms of desirable immigration, in terms of fair sharing of responsibility, and in terms of realistic expectations about migration.
Adapt Planning to Reality
“Regaining control” has been a mantra of politicians who seek to curtail migration to Europe. One response to this slogan is that there never has been control over migration, and that there cannot be complete control over migration if there is also the recognition of fundamental rights. Another response, however, to the “regaining control”-slogan is that the sense of lacking control has been a result of trying to adapt the reality to unrealistic planning. There will be a better sense of control when adapting the planning to the reality, with prognoses over migration that are based on an informed look into this world.