Peter Rodrigues is Professor of Immigration Law and Chairman of the Institute of Immigration Law of the University of Leiden, and former head of the department Research and Documentation at the Anne Frank House (Amsterdam). Peter Rodrigues has published widely on migration and statelessness.

He is a member of the Dutch Standing Committee of experts on international immigration, refugee and criminal law (Meijers Committee) and the Chairman of the Dutch Association for Migration Research. From April 1995 till September 2000 he was appointed as a Commissioner of the Dutch Equal Treatment Commission.

Our Guest Author, Mr. Ciesielczuk, is currently pursuing a Master’s Degree in Public International Law at Leiden University. He has a strong interest in international law, international relations, European affairs and politics. He is former Vice President of the Dundee University Exchange Society, and the founder of the Dundee helping Ukraine Initiative.

Jacob Ciesielczuk: The first question is very general: How should the EU deal with such a huge influx of the refugees as the one we are currently facing?

Peter Rodrigues: The fact is that the number of refugees makes it extremely difficult for host countries to deal with it properly. The huge amount of refugees who have just arrived to Europe or are on their way can be classified as exceptional situation, therefore some exceptional rules should apply. However, primarily, every individual refugee case should be analyzed separately. Despite the huge number of refugees, the host countries still need to pay attention to individuals who may pose a threat to national security or simply cannot be classified as asylum seekers.

J.C.: Do you think that the European Commission’s decision on the emergency relocation of the refugees may trigger some conflicts within the EU, given that there is a strong disagreement between EU Member States as to how to handle the refugee crisis?

P.R.: I think that, in the light of the current crisis, Europe should face it with solidarity, as this is one of the core principles of the EU. However, securing the national migration policy rather than following the EU directives were taking place even before the current crisis, we have Italy and Greece as examples. Unfortunately, many EU Member States seem to still seek to secure national interests and policies rather than to act collectively.

J.C.: Do you think that there is a strong conflict between the rule of sovereignty of the State and its obligations under EU law?

P.R.: When the EU started its migration policy with the Treaty of Amsterdam, in 1999, we, as human rights lawyers, feared that it would create very strict regulations imposed on EU Member States and we were aware of the delicate nature of these legal instruments. Nowadays, we came to the point where the European law provides an extensive protection for migrants, while many national legislations of EU Member States provide only very limited protection for them. Given the supremacy of European law over national legislation, such a situation is unacceptable as EU Member States cannot lower the agreed level of protection for migrants. All the EU legal instruments regarding asylum policy, including EU Directives and Regulations, set up a minimum standard for dealing with migrants and that standard should be followed without exception everywhere within the European Union. 

J.C.: Do you think that Dublin Regulation III, as a legal instrument regulating the flow of refugees, is efficient enough to cope with current crisis? 

P.R.: Not at all. It was already not working properly even before the current refuges crisis started. As we have seen in the judgment of European Court of Human Rights in the case of M.S.S in 2011, the Dublin Regulation III is not applicable to Greece anymore. There have been similar problems with the Dublin Regulation in Italy, Hungary, and Malta. 

J.C.: The Dublin Regulation provides that the first Member State of the EU reached by a migrant coming from outside the EU is responsible for protecting the rights of that individual. However, there are some politicians, such as Angela Merkel, who are explicitly inviting migrants to come to Germany. This seems to breach the provisions of the Dublin Regulation as it encourages migrants to travel across Europe, and, as a consequence, it will, in theory, deprive the migrants of all the rights. What do you think about that?

P.R.: That seems, indeed, to be a breach of regulation. However, at the same time, politicians like Angela Merkel require solidarity and cooperation from all EU Member States and hope that other States will follow their approach. As I said before, the huge number of refugees is an exceptional situation and exceptional measures should be taken. 

J.C.: Do you think that any potential reform of the European Migration Policy is possible or desirable at the moment; if yes, would be helpful in coping with the current crisis?

P.R.: We have some relatively recent recast regulations like Qualification Directive 2011 and Dublin Regulation III 2013, and, in my opinion, it would be extremely hard to review these legal documents now, given that there would be no consensus as to how to amend them. There is no certainty of whether the States would opt for a more extensive rights for migrants or, on the contrary, States would be willing to restrain the current rights. In other words, the political climate in Europe at the moment is not the best time for applying any changes with regard to the migration policy. As we have seen in the decision of Court of Justice of the European Union in the case MA v UK, the proposals of European Community to amend the provisions of Dublin Regulation III regarded only a very narrow scope, namely the case in which an unaccompanied minor is rejected, and it was opposed by States like Germany and the Netherlands. However, it is worth to mention that the inactivated Temporary Protection Directive (2001/55/EC) created in 2001, following the uncoordinated response to the refugee crisis generated by the conflict in the former Yugoslavia in the 1990s, seems to be an applicable solution for the current refugee crisis. Its purpose is to provide a framework and minimum standards for responses to the mass displacement of persons who are unable to return to their country of origin (for example, due to armed conflict).


This interview was originally published in the tenth issue of the magazine, which can be accessed here.