9 October 2023
„Migration Challenges – Legal Responses„ – is the theme of the third edition of the Oxford Debate, which took place on October 9, 2023, at the headquarters of the Justice Institute. Its purpose was to draw the attention of European citizens to important and relevant topics related to the future of Europe, and in particular Central Europe. The main objective of the Oxford Debate entitled „Migration Challenges – Legal Responses” is to enable young researchers to present different visions and legal concepts on the balance between refugees and migrants, as well as the competence of the EU and EU Member States in the field of refugee and migration law. The debate consisted of two issues on the migration challenges of the modern world, during which two teams – from Poland and Central Europe – were able to present their vision on two main topics:
- maintaining a balance: „refugee” versus „migrant”
- competencies of the EU and EU Member States in the field of refugee and migration law: limitations, use and limits.
The dissemination event received a very positive reception and went to 500 recipients.
The theme of the first panel was the conundrum: To strike a balance: ‘refugee’ versus ‘migrant’.
The first topic was an explanation of the concept of a migrant under international law. Both Polish and Central European presenters pointed out that in international law the term „migrant” has no precise definition. Instead, it is distinguished by what it is not – a refugee. In this context, a migrant represents a person who voluntarily moves from one country to another, usually driven by aspirations to improve economic prospects, educational pursuits, family reunification or various personal reasons. Most importantly, migrants are not fleeing persecution or serious harm, which distinguishes them from refugees.
This was followed by clarification of the concept of migrant in terms of national law. Both speakers pointed out that national laws offer divergent definitions of migrants, often depending on immigration status and visa categories. Countries establish specific criteria governing different types of visas, from work visas to student visas and family reunification visas. Adherence to these established criteria dictates the legal status of migrants. The incorporation of refugee and migrant law into the national laws of Central European countries is influenced by a combination of national legislation, international treaties and European Union regulations. Like other EU Member States, Central European countries have certain legal obligations under international and EU law, as well as their own national legislation that shapes how they deal with refugees and migrants.
The next topic was a review of the objectives of migration law. The debaters pointed out that, in essence, migration law embodies a delicate balance of interests, bringing together the aspirations of nations, migrants and societies. It bears witness to the complex and constantly evolving nature of human movement, shaping the destinies and enriching nations.
This was followed by an analysis of the rights and obligations under migration law. The main conclusion of the speeches was that international and European human rights laws oblige EU Member States to guarantee the human rights of all people under their jurisdiction. This applies to both regular and irregular migrants. While Member States are not obliged to grant all migrants the same benefits as their own citizens, they must respect a core set of human rights standards (such as the right to basic health care or the ability to seek justice, among others).
Next, the concept of a refugee under international law was explained. In this part of the discussion, it was pointed out that in international law the concept of a refugee is firmly established and defined in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. It is crucial to recognize and maintain this legal distinction to ensure that refugees receive the protection and support they need in a world where displacement and human mobility continue to be pressing global issues.
Next, the presenters explained the issue of the concept of refugee under domestic law. The presenter from Poland pointed out that the normative concept of „refugee” in Poland is exhausted by the definition in Article 1a (2) of the 1951 Geneva Convention. In accordance with Article 43 (2), the Convention entered into force for the Republic of Poland on December 26, 1991. Among Polish national legal acts, mention should be made of the Law on Foreigners. This law only defines the term „foreigner,” which is defined as „anyone who does not have Polish citizenship.” So here we have a simple distinction that depends on whether or not one has Polish citizenship. In contrast, the Central European presenter pointed out that their national laws are generally in line with the international definition of a refugee, they may include additional criteria and procedures for determining asylum.
This was followed by an overview of the goals of refugee law. The parties pointed out that as far as the goals of refugee law are concerned, most countries in the world have adopted general goals under the United Nations universal system. The most enduring institution established within the United Nations is the Office of the United Nations High Commissioner for Refugees (UNHCR). The main tasks of the Office of the High Commissioner include providing international care for refugees who fall under the institution’s mandate and taking action to seek lasting solutions to the refugee problem.
Last in the first part of the Debate was an analysis of the rights and obligations under refugee law. In the course of the discussion, it was proven that asylum seekers and refugees, like all other persons, can enjoy the rights and mechanisms for monitoring compliance with their rights enshrined in international conventions and documents related to the protection of human rights and fundamental freedoms under the United Nations, the Council of Europe or the European Union. Some human rights conventions and documents also contain explicit provisions for rights related to asylum seekers or refugees or do not contain such, but many of their provisions indirectly protect several of these rights.
Then, the second panel topic was: EU vs. Member State competencies in refugee and migration law: limits, use and boundaries.
The first topic in the second panel of the Debate was to present the sources of migration law – national and international approaches. In presenting this issue, the debaters concluded that in international law the concept of a refugee is firmly established and defined by the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Essentially, a refugee, according to this framework, is a person who has been forced to leave his or her country of origin because of a well-founded fear of persecution, which is rooted in characteristics such as race, religion, nationality, political opinion or membership in a particular social group. It is crucial to recognize and maintain the legal distinction to ensure that refugees receive the protection and support they need in a world where displacement and human mobility continue to be pressing global issues.
This was followed by an overview of the EU’s competence in migration law. As a summary of this issue, it can be pointed out that the EU’s competence in migration law is well established and has evolved over time to meet the challenges and complexities of migration in the Union. While Member States retain some autonomy in some aspects of migration policy, the EU provides a common framework and standards to ensure cooperation, harmonization and respect for fundamental rights in the field of migration.
The next topic was an overview of the competencies of Member States in the field of migration law. Both the Polish and Central European speakers demonstrated that the primary goal of the European Union is to pursue a forward-looking and comprehensive European immigration policy based on solidarity. Immigration policy serves to ensure a balanced approach to both legal and illegal immigration. The legal basis for such measures is Articles 79 and 80 of the Treaty on the Functioning of the European Union. The presenters pointed out several powers of Member States, such as legal immigration, integration and combating illegal integration.
This was followed by a discussion of the limitation (principle of conferral) and use (principle of subsidiarity and principle of proportionality) of the competencies of the EU and Member States in the field of migration law. As a conclusion, the debaters pointed out that these principles play a key role in shaping the distribution and use of competencies in migration law in the EU. The principle of conferral of powers defines the limits of EU competence, the principle of subsidiarity determines the appropriate level of governance, and the principle of proportionality guides the EU in creating measures that are balanced and necessary to achieve common goals while respecting the autonomy of Member States. These principles help maintain the delicate balance between the centralized authority of the EU and the sovereignty of individual Member States in the complex field of migration law.
Next, the sources of refugee law – national and international approaches were presented. Those presenting this issue pointed out that in our debate on the sources of refugee law, it is crucial to examine its legal framework, taking into account both international and domestic aspects. Together, these sources establish the rights and protections afforded to refugees and play a key role in addressing their unique needs. As a conclusion, they showed that both international and domestic sources of refugee law jointly establish the legal framework for the protection and rights of refugees and asylum seekers.
Next, the presenters reviewed the EU’s competence in refugee law. It has been clarified that the European Union (EU) has competence in refugee law as defined in the EU treaties and legal instruments. These competencies reflect the shared responsibility of the EU and its Member States to address refugee issues. Nonetheless, Member States still retain significant responsibilities and roles in implementing refugee law in their territories. The division of competencies between the EU and its Member States is a complex process, and cooperation between these actors is crucial to effectively deal with refugee challenges in the EU.
This was followed by an overview of the competencies of Member States in the field of refugee law. In this part of the speech, it was presented that the EU’s asylum policy is aimed at granting appropriate status to any non-Member State citizen in need of international protection in a Member State and ensuring compliance with the principle of non-refoulement. Accordingly, the Union seeks to introduce a common European asylum system. It was also pointed out that in recent years the EU Council and the European Council have developed a strong response to migratory pressures.
The last issue of the Debate limitations (principle of attribution) and use (principle of subsidiarity and principle of proportionality) of the competences of the EU and Member States in the field of refugee law. Speakers rightly pointed out that in accordance with Article 78 TFEU, the EU is developing a common policy on asylum, subsidiary protection and temporary protection, aimed at granting appropriate status to any third-country national in need of international protection and aimed at ensuring compliance with the principle of non-refoulement. This policy must comply with the Geneva Convention of July 28, 1951, and the Protocol of January 31, 1967, relating to the status of refugees, as well as other relevant treaties.
