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Have you ever wondered why refugees don't simply travel to Europe on fast and comfortable aeroplanes instead of by sea on small inflatable dinghies? After all, planes are much safer than little rubber boats. The cost can't be the reason. Refugees often pay smugglers thousands of euros for a place on one of the boats, whereas travelling by plane from Turkey to Germany costs less than 50 euros. Maybe they were not able to leave the country and reach the airport? But that can’t be it either. In 2015, most Syrian refugees travelled to Turkey to take the boat but they could have easily gone to Istanbul Atatürk Airport. So what exactly triggers this choice? Why entrust your life to a small, overcrowded rubber dinghy instead of a well-equipped aeroplane? Well the answer is both simple and complex.

The simple answer

The simple answer is that they are not allowed to choose. It’s not as if they were presented with two travel options, one that is cheap, safe and comfortable, the other long, costly and dangerous, and they chose the latter, just for the thrill of it. No, the reality is that if they had gone to the airport, the airline staff at the check-in counter would have stopped them. Why is that? Well that’s the complex answer.

The complex answer

This involves a EU directive, the Carrier Sanctions Directive 2001/51/EC, that imposes sanctions on carriers – such as airline companies – if they transport passengers that are not in possession of valid travel documents. Penalties range from €3,000 per passenger to a lump sum of €500,000, depending on the country. Carriers will also have to cover the costs of the passenger’s return trip. This sounds like a reasonable measure to combat irregular immigration. However, it has a flaw.

Recital 3 of the directive states that signatories have to apply the directive “without prejudice to the obligations resulting from the 1951 Geneva Convention”, which includes the prohibition of refoulement. In other words, the directive should not prevent refugees from seeking asylum. But it does. Refugees fleeing conflict zones are often unable to obtain passports, let alone visas, partly because most embassies close in war-torn countries. For Syrian refugees in 2015, getting a visa in Turkey was close to impossible given the lack of resources of the embassies to process the volume of applications.

The directive leaves airline personnel to decide who is a potential asylum seeker. Imagine that. Airline staff, with no relevant experience, have 45 seconds to take a decision on who is and who is not a refugee, while embassies can take months. Carriers are threatened with fines if they allow entry to an undocumented migrant, but there are no penalties for denying entry to an asylum seeker. Thus, airline companies refuse permission to board the plane to people who don’t have valid documents. They have nothing to gain but much to lose.

To help airline staff in deciding who is eligible for asylum, EU member states have posted document experts or so-called immigration liaison officers (ILOs) at large airports. According to a report by the European Agency for Fundamental Rights (FRA), these officers can “assist airlines in establishing whether individual passengers who appear to be improperly documented are nevertheless bona fide and may be carried without incurring financial charges under carrier legislation”. ILOs have limited power, however, and can only provide airline staff with advice, leaving them with the final decision. It is thus very questionable if airline companies would take the risk of transporting an ill-documented passenger.

Outsourcing border control

The practice of delegating border control to airlines is not fulfilling the EU’s responsibility for refugee protection. Carrier sanctions are a leading example of the privatization of migration management. By imposing sanctions on carriers, fortress Europe is using a remote control policy to block access to its territory. The sanctions make it extremely difficult for refugees to travel safely to Europe, so they turn to smugglers, who become the main beneficiaries. In 2015 alone, they made more than five billion dollars transporting migrants to Europe.

This not only has detrimental effects on those seeking protection, but given the unprecedented numbers of irregular arrivals in the EU in 2015, the effectiveness of the directive may be seriously questioned. As the European Council for Refugees and Exiles (ECRE) states: “Carrier sanctions may certainly have been successful in preventing migrants, asylum seekers and refugees from accessing regular means of transport, but apparently, they have not contributed to a substantial reduction of the total volume of irregular migration to the EU and therefore the use of irregular ways of crossing borders.”

Safe and legal pathways

Instead of discussing how to dismantle smuggler networks, the EU should focus on creating safe and legal pathways for refugees. Lifting or at least suspending visa requirements and carrier sanctions would ensure safe and lawful arrival and at the same time considerably hurt the business of smugglers. Issuing more humanitarian visas in European embassies outside the EU would further reduce the refugee death toll.

Carrier sanctions, restrictive visa policies and other measures to reduce arrivals force refugees to resort to irregular migration channels, making them vulnerable to human rights abuses and ironically forcing them to risk their life to reach a safe harbor. EU member states have a far greater responsibility than airlines for refugee protection. They should act accordingly.

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