5 simple things to know about asylum policy in the European Union

Migration is quickly turning into the defining issue of our time. This might sound cliché, but is true. Not only does migration top the list of most important problems facing society, but it is also divisive in a way no other issue is. Unlike problems like inequality or the environment, immigration polarizes and divides opinions of ordinary people in a manner that cuts through social classes, education levels, age groups, and political affiliations. Divisions and bitter disagreements run even within families and close circles of friends. For no other issue do I see on my Facebook wall the full gamut of opinions ranging from strong rejection of migrants and refugees to their unconditional welcome and embrace. Most opinions of course fall somewhere in-between expressing, for example, support for `genuine’ refugees fleeing war but not for economic migrants, or for Christian but not for Muslim immigrants; yet, deep and important disagreements remain.

The current crisis with the influx of hundreds-of-thousands asylum-seekers in Europe in the summer of 2015 is only but the current episode of the unfolding migration drama. The crisis and the political responses to it bring powerful emotions in people: fear and compassion, anger and humility, empathy and contempt. Together with polarization, emotions further cloud the discussion of asylum policies and the right thing for the European countries to do in this situation. In response, I want to share five simple things I happen to know about asylum policies in the EU. I am by no means a specialist on the legal aspects of asylum or migration law. My expertise comes from two rather technical policy studies I have conducted on the aggregate patterns of asylum applications and country refugee recognition rates over the last decade, and on their relationships with the broader social and political contexts. (see here and here for the academic articles and here for a blogpost and visualization based on them)

1) The asylum policies of the countries members of the European Union still differ a lot. Despite a considerable body of EU legislation harmonizing national asylum policies, in effect these national policies have not converged to a common set of standards and rules. The differences concern the handling of asylum application procedures (e.g. their duration), the actual support provided by the state to the applicants during the procedure, the quality of the reception facilities, the rights and privileges gained after (and if) a refugee status is granted, the forms of alternative protection if a refugee status is not granted, and what happens to those who are refused any protection. Most importantly of all, however, the EU member states differ significantly with respect to their recognition rates (the share of applications that are granted the refugee status) even for applicants from the same country of origin. By implication, this means that different states apply rather different criteria when assessing the asylum applications.
These differences are crucial to understand why a joint common EU asylum application center does not seem politically feasible at the moment and is not even being discussed as an option to respond to the current crisis. Until such considerable differences exist, a truly single European policy on asylum would remain out of sight.

2) The strictness of national policies towards asylum-seekers matter relatively little for the asylum flows they receive. You can think that by tightening their asylum policies – making reception conditions worse, reducing support during the application and after, or lowering the recognition rate, countries can lessen the asylum application burden that they face. But in fact asylum flows tend to be relatively insensitive and unresponsive, at least in the short and medium terms, to the strictness of national asylum policies and to how low or high the national recognition rates are. So manipulating national policy is not an effective tool to divert (or attract) asylum application flows. The same goes for the effect of current economic conditions or the political climate in a country (for example, whether there is broad public and party support or opposition to migrants). Asylum flows are directed to a large degree by geographical convenience and existing transit networks, by hearsay and stereotypes to be affected by the details of national asylum policies or recognition rates. The implication of all that is that no single country can unilaterally isolate itself from the asylum flows coming to Europe. That being said, because asylum flows are highly clustered (see below), not being on what is at the moment the most convenient route to Western and Northern Europe can dramatically affect the number of asylum-seekers that pass through or end up in your country.

3) Asylum-seekers from the same nationality or region tend to cluster in particular places. Not only do asylum-seekers from the same region or country tend to travel on the same routes employing the same networks and middlemen, but they also tend to cluster when and where they choose a place to lodge an application and where they settle if allowed. These points are quite intuitive. Extended family ties and networks provide for crucial information about handling the asylum-application process and about the living and working conditions in the host country and city. They also provide support and protection, etc. So no wonder that new asylum-seekers and refugees try to go to where they family and friends already are.
What is important to recognize, however, are the not so obvious policy implications of the fact that asylum-seekers and refugees cluster in space. Because migrants would tend to congregate in few places, these places would be subject to a much greater asylum burden than others. This goes for countries, but also for cities and regions within countries.
That is why countries are reluctant to let asylum-seekers and refugees settle wherever they wish in the EU. Otherwise, the fear is that because of the attracting power of existing networks of relatives and compatriots, very few places will have to deal with the challenges of supporting and integrating a great proportion of the refugees. The call for mandatory country (and existing regional within-country) quotas are partly responding to these expectations.

4) Even when recognized as such, refugees do not enjoy a freedom of movement in the EU. As mentioned above, refugees (and asylum-seekers) are not allowed to move, reside and work freely within the EU, unlike citizens of its member states. Even though recognized refugees might have the rights to work and live in the country that has recognized their status and even benefit from the national social protection policies, they cannot choose to relocate to another member states. This is important in order to understand why it is so crucial for the asylum-seekers to reach the desired place in Europe before they lodge an application.
But it is also important to understand why the compulsory re-settlement based on country quotas that the European Commission proposes would likely not work. Even if adopted by the Council (which at the moment seems rather unlikely), the scheme would run into troubles the moment the refugees try to skip their imposed host countries and go to where their family and support networks are. And they will. The resettlement quote scheme would then have to be coupled with measures like compulsory self-reporting or tagging that would allow for tracing the location of refugees and asylum seekers. Such measures would not only by expensive, but morally objectionable as well.

5) Even when their requests for asylum are rejected, asylum seekers often stay in Europe. This is the dirty little secret of asylum policy in Europe. Even when an asylum application has been rejected, and even when other forms of alternative protection are not granted, the migrants are rarely sent back to their country of origin. They either disappear into illegality but never leave the continent or exist in a para-legal limbo where their presence is tolerated but no support is provided. European countries differ in the extent to which they allow this to happen, and it is hard to get precise numbers about the scale of the problem, but it is in any case huge. Alternatives are, however, hard to find as locating and sending people back to their country of origin is expensive, often impossible if the migrants lack proper documents, and, many would argue, morally objectionable. But this fact undermines the idea that asylum-seekers are a special group of migrants who are only allowed to stay in the country if they face serious threats for their lives and dignity at home. If those who are rejected are allowed or tolerated to stay anyways, the difference between an asylum-seeker and a migrant motivated by economic or other reasons is much hard to draw in the public mind. Note that I am not saying that people migrating for reasons others than fleeing wars and persecution should not be welcomed; only that many people have different attitudes and policy preferences with respect to different groups of migrants, and that blurring the boundaries between the groups can have negative consequences for people’s selective support of particular groups, like refugees.

 All in all, none of these five points suggest a comprehensive solution to the current asylum crisis or point to a clear way forward. What they do, hopefully, is to outline some of the facts and constraints that those in power must have in mind when designing responses to the situation and some arguments with which the judge existing proposals.

To put my cards on the table, I currently think that a combination of three policies can be preferable to the current system and to existing proposals:

  • A centralized single EU-managed system of asylum application centers at places along (and perhaps even outside) the borders of the EU, financed by the EU budged and staffed by European civil servants (support for the regions where the application centers are located would be needed to handle the flow of asylum-seekers during the time their applications are being assessed);
  • Free movement for recognized asylum seekers within the continent. This should include the rights to move, settle, and work, but not necessarily access to the social systems of the host countries. Places where refugees happen to cluster disproportionately would get support from a pot to which all countries contribute.
  • Strict control of the external borders of the EU to channel the applications through the official centers and strict `no access’ policy for people denied asylum or alternative forms of protection.

This would represent a rather drastic change from the system currently in place so it probably has low political feasibility. At the same time, current proposals do not seem to fare much better in the EU decision-making bodies, so the scale of required changes should be no reason to disregard the ideas.

Bureaucrats as Policy-makers

Everyone loves bitching about bureaucrats but few know what it is exactly that they do. Ed Page‘s new book ‘Policies without Politicians’ provides plenty of insights. As I mention at the end of this book review, everyone who theorizes or criticizes bureaucrats should read the book as a reality check. A shorter version of the review is forthcoming in West European Politics later this year.
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This book is about the making of decrees such as the Alcohol Disorder Zones in the UK, Salmon critical habitats in the US, Horse Medicines in the EU and Women’s Organizations in Sweden. If you suspect these issues are rather prosaic, you are not alone. And this is precisely the point. This book is about the making of policies in the absence of sustained attention by politicians. It is a study of how bureaucrats make rules when mostly left to their own devices. It is an exploration into the nature and limits of bureaucratic discretion to regulate our lives.

The main conclusion, based on an analysis of 58 issues in six political systems, is that the freedom enjoyed by civil servants and their insulation from political control are in practice severely limited if not completely illusory, even when it comes to the relatively minor issues discussed in the book. Admittedly, this is a rather prosaic conclusion as well, but one that is comforting, timely andimportant. It is comforting to the extent that it dispels the popular myth of the faceless bureaucrats controlling our lives. It is timely because theories of policy-making and politico-administrative relations have became increasingly preoccupied with issues like bureaucratic drift, shirking, delegation costs, and the like with little evidence that these actually matter in real life. Finally, the conclusion is important in
view of the continuing tendency of political science to ignore the pedestrian reality of everyday policy making which although lacking the suspense of high politics comprises the bulk of the activities of states and public organizations.

The book contains an introduction, six empirical chapters covering policy-making in France, Britain, Germany, Sweden, the United States, and the European Union, and a conclusion. In this review I will follow the opposite route by first summarizing part of the generalizations offered in the last part, then focusing on some of the country-level insights, and finally commenting on the approach of the book.

Studying the origin and passage of a moderately large sample of secondary legislation (decrees), Edward Page concludes that politicians generally get their way even if their attention towards the issues is sporadic. Bureaucrats anticipate the preferences of their political masters and adjust the text of the decrees to the politicians’ explicit or assumed wishes. Moreover, bureaucratic discretion is severely constrained by precedent, existing legal codes, and procedural rules for the preparation of legislation, in addition to the need to anticipate and avoid political vetoes. And if for most of the decrees political direction is passive, there is a tendency for the relatively important ones to be developed under direct
and active political guidance.Contrary to theoretical expectations, the technical and scientific character of many of the issues is not sufficient to exclude political involvement (p.153). Also running against some popular theoretical ideas based on principal-agent modeling is the observation that it was never an ‘alarm’ set off by interest groups (p.151) that brought political attention to an issue. Again, bureaucrats tend to detectand anticipate potential conflicts and solve them before they offer the decrees for final approval. But it
is internal norms rather than external scrutiny or outside interests that are most important in keeping the bureaucrats in check, according to the book (p.165).

Politicians appear to be most often involved in the legitimation of decrees, but that does not mean bureaucrats have a free hand during the agenda-setting stage. Not only did many decrees offer no scope for policy deliberation at all, but in most cases there was almost no scope for choice whether to introduce the proposal in the first place: proposals often followed automatically from prior commitments in primary legislation, the need to update, codify, or clean up existing rules, or the obligation to apply international norms and agreements. In this context the author is right to question the relevance of theoretical concerns like bureaucratic drift and shirking, and ponder what would selfinterested
bureaucratic preferences even look like with regard to many of the policy issues discussed in the book (p.160). If one looks for the influence of civil servants, it is not to be found in the supposedly unconstrained discretion they enjoy in pushing their own agendas or preferences, but in the routinization, regularization and adjustment of policy they perform (pp.168-170).

These general patterns seem to be influenced by the national institutional context (pp.155-158) and vary to some extent across the six political systems studied. Sweden appears to be the place where politicians are most likely to get involved in the preparation of decrees even when one would expects them not to. On the other end of the spectrum, the UK and Germany exhibit the lowest degree of direct political involvement. In the German case, this stems from the fact that potential conflicts are solved in different institutional arenas before the drafting of the decrees had even started. As for the UK, the book posits a ‘general reluctance among politicians to get directly and actively involved in the activity of
rule-making ‘ (p.157). A surprising degree of political involvement (mostly as agenda selectors) is found in the generally pluralist American system, in addition to the continual importance of the agency as the central locus of organizational identity for American bureaucrats. The French system is found to be unexpectedly ‘as close to interest group corporatism as it is to the traditional aloof ‘strong state”’ (p.44).

But it is the chapter on the European Union that most strongly contradicts the popular perceptions and received common, if not academic, wisdom. Page is clear that ‘the role of Commission bureaucrats as [policy] initiators was highly limited’ (p.128), Commissioners often get directly involved, and there is very little scope for independent action. Far from enjoying a bureaucrat’s paradise, civil servants in the European Union appear to have very little substantial autonomy and influence.

Although the synchronic comparisons between the six political systems and the diachronic
comparisons with previous academic accounts suggest intriguing patterns, the book can pursue them only as far. The study is unapologetically inductive, there is little effort to systematize the empirical mess of real-word policy-making into variables, and the case selection is driven primarily by pragmatic reasons. While this serves the exploratory objectives of the book well, it also posits limits on the inferences and generalizations one can make. Since the sample of issues (decrees) is not (intended to be) representative it is difficult to judge whether the case studies provide evidence for genuine change in national policy-making styles (e.g. France, the US), or for systematic differences between  countries (e.g. Sweden vs. the UK). Since the decrees researched differ across the six political systems, the question why certain issues are left for bureaucratic policy-making (decrees) in one country but get in the social and political prime-time in others is left answered. Furthermore, by selecting only cases which eventually resulted in a decree, the book might have overlooked potentially interesting cases where (political) conflict stopped the development of policy in its tracks.

These points are as much suggestions for future research as they are criticisms of the current volume. The book is quite clear about its own limitations deliberately positioning itself as an inductive exploration. And it achieves its purpose rather well. As the author notes, it is difficult to produce a good book describing cases which are dull and boring by definition, but, although not gripping, the text manages to provide just enough detail and institutional context to keep the reader interested. In fact, the short presentations of the six policy-making systems contained in each of the country chapters make the book suitable for primary or complementary reading for academic courses on comparative bureaucracy and comparative public policy. But above all, the book should be required reading, and a
reality check, for all those who theorize and criticize bureaucracy and bureaucrats for their alleged discretion in regulating our lives.

Governing by Polls

The study of policy responsiveness to public opinion is blossoming and propagating. Work published over the last two years includes the 2010 book by Stuart Soroka and Chris Wlezien (Canada, US and the UK), this paper by Sattler, Brandt, and Freeeman on the UK,  this paper on Denmark, my own article on the EU, Roberts and Kim’s work on post-Communist Europe, etc.  The latest edition to the literature is this article by Jeffrey Lax and Justin Phillips from Columbia University (forthcoming in AJPS).

“The Democratic Deficit in the States” takes a cross-sectional rather than a dynamic (time series) perspective and analyzes both responsiveness  (correlation)  and congruence between policy outcomes and public opinion in the US states for eight policies. In short, there is a high degree of responsiveness but far from perfect congruence between majority opinion and policy. More salient policies fair better, and having powerful interest groups on your side helps. Altogether, this is an interesting and important study that adds yet another piece to our understanding of policy responsiveness.

What starts to worry me, however, is that the normative implications of the policy responsiveness literature are too often taken for granted. Lax and Phillips seem to equate the lack of correspondence between public opinion and policy to democratic deficit(similarly, Sattler, Brandt and Freeman speak of ‘democratic accountability’). But there is quite a gap between the fact the a policy contradicts the majority of public opinion and the pronouncement of democratic failure. And we need to start unpacking the normative implications of the (lack of) policy responsiveness. 

Of course, at a very general level no political system can be democratic unless there is dynamic responsiveness and broad correspondence between the wishes of the public and what government does. But can we equate congruence of policy with public opinion with democracy? I don’t think so. Precise responsiveness and congruence are neither necessary nor sufficient for democratic policy making. Why?

First and foremost, public opinion as such does not exist. One doesn’t need to embrace a radical post-modern position to admit that the numbers we love to crunch in studies of policy responsiveness are, at best, imperfect (snapshot) estimates of a fluid social construct. It is not only that estimates of aggregate public opinion are subject to the usual measurement problems. It has been shown times and again that the answers we get from public surveys are sensitive to the precise wording, form, and  context of the questions (see George Bishop’s ‘The Illusion of Public Opinion’ for an overview). The questions themselves are often vague and imprecise. Polls will elicit responses even when the people have no meaningful opinion towards the issue (opinions will be regularly given even on fictitious issues). The availability bias is often a problem, especially in surveys of the ‘most important problem’ (open vs. close forms of the question).

A second problem is that public opinion as portrayed by mass surveys need not be the same as the opinion of a group of people after they (1) have been given relevant information about the issue, (2) have been allowed ample time to think about it, and (3) have had the opportunity to deliberate about it (on deliberative polls which come with their own set of problems see James Fishkin). People know astoundingly little about current policies even when they are personally affected by them (here). Do we expect congruence and responsiveness between policy and public opinion as given over the telephone after a modicum of brain activity, or policy and public opinion as it would have been if people made informed decisions with the common good in mind?

The third problem is that public opinion is expressed on various issues presented in isolation. I can very well support an increase in spending on defense, education, and health, and a decrease in the overall state budget at the very same time.  My opinion and preferences need not be consistent but policies need to be. The problem is compounded by the possibility of preference cycles in aggregate public opinion. Even if individual opinions are rational and well-behaved, preference cycles in aggregate public opinion cannot be ruled out.

There is some unintended irony in Stimson et al. designating the aggregate of attitudes and opinions they construct the ‘policy mood’ of the public. Normatively speaking, do we really expect policy to respond to the mood of the public with all the irrationality, instability and caprice that a mood implies? All in all, the lack of perfect temporal and spatial correspondence between public opinion and policy cannot be interpreted directly as a sign of democratic deficit and failure. Political institutions translating mass preferences into policy exist for a reason (well, a number of reasons, including preference aggregation, deliberation, and inducing stability).

The other side of the same coin is that responsiveness is not sufficient for democracy. The fact that a government follows closely majority opinion as expressed in the polls and adjusts policy accordingly cannot be a substitute for a democratic policy making process. This is especially clear in my own analysis of the EU: although I find that aggregate legislative production closely follows the ebbs and flows in public support for the EU during the 1970s, 1980s, and early 1990s this cannot dispel our misgivings about the democratic deficit of the EU during this period – the polls are not a substitute for elections, representation, and accountability.

The lack of sufficient reflection on the democratic implications of the (lack of ) policy responsiveness is especially worrying in view of the tendency (identified on the basis of my subjective reading of the political process in several European states) of more and more reference to and reliance on ‘instant’ polls in making policy. The increased availability and speed of delivery of ‘representative’ public opinion polls lures politicians into dancing to the tune of public opinion on every occasion. Sensible policies are abandoned if the poll numbers are not right (e.g. second hand smoking restrictions, see here), and retrogressive policies are enacted if the percentage of public support is high enough. But government by polls is only one step removed from the government by mobs. Politicians should sometimes have different policy opinions than the public and they should have the courage to pursue these opinions in the face of (temporary and latent) opposition by the citizens. Meanwhile, social science has the important task to uncover when and how policy responsivness and congruence works. But I see no need to inflate and oversell the normative implications of the research.

Veto players and policy making (UK style)

 The concept of ‘veto players’ (developed initially by George Tsebelis) plays a prominent role in research on policy making, legislative production, policy implementation, etc. All these analyses need to be revised, however, because the measure of the number of British veto players has been revealed to be wrong. Everyone forgot to include ….. Prince Charles. Here is the story from the Guardian:

Prince Charles has been offered a veto over 12 government bills since 2005. Ministers sought prince’s consent under secretive constitutional loophole on bills covering issues from gambling to the Olympics…Ministers have been forced to seek permission from Prince Charles to pass at least a dozen government bills, according to a Guardian investigation into a secretive constitutional loophole that gives him the right to veto legislation that might impact his private interests.

 Plus one (veto player) for the UK. Minus one for democracy.