The effectiveness of external governance of the European Union on China

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Borders and asylum:

The borders asylum seekers face before gaining protection

in the EU

Master program: The European Union in a Global Order

Research project: Europe, boundaries, orders: EU enlargement, neighbourhood and foreign relations

Supervisor: Dr. Julien Jeandesboz Second reader: Dr. Polly Pallister-Wilkins

Author: Emils Vjaters

Student number: 10601937

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1. Introduction: protection or exclusion?

The area of freedom, security and justice ensures free movement of people and protection of European Union (EU) citizens. Article 67(1) of the Treaty on the Functioning of the European Union states: “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States” (Council of the European Union 2008). However, not all people within the Union have the same rights of movement and protection. Those with fewer rights are usually third country nationals. One group of third country nationals appears particularly vulnerable: those are asylum seekers, who left their countries of origin due to fear of persecution and have come to the EU to seek protection.

As signatories of the Convention relating to the Status of Refugees of 28 July 1951 (hereafter 1951 Geneva Convention), the EU Member States have all agreed to provide refugee status and thus also protection for individuals “owing to well founded fear of being persecuted” (UNHCR 2010, Article 1). Article 18 of the Charter of Fundamental Rights of the European Union states that the EU Member States shall guarantee the “respect for the rules of the Geneva Convention” with regard to asylum (OJEC 2000). Thus, all EU Member States have the obligation to provide protection for individuals who classify under the 1951 Geneva Convention definition of an asylum seeker (see Chapter 2 for a more detailed discussion on the definition).

At the same time, however, asylum seekers are often portrayed as a security problem or a threat for the EU (Huysmans 2000, p. 757). They are presented as “a danger to the public, cultural identity, and domestic and labour market stability” (idem., 752). Thus, Boswell (2003, p. 624) argues, there has emerged an anti-immigration discourse in the EU. Huysmans (2000,p. 770) calls this “the securitization of asylum-seekers”. As discussed below, this securitization allows state authorities to use extraordinary means against the securitized objects.

One of the main reasons asylum has been securitized is that the assessment of asylum applications and hosting asylum seekers is very costly for states (Thielemann & El-Enany 2010, p. 210). Moreover, the international refugee regime is seen to have weakened state sovereignty. Due to the 1951 Geneva Convention, states are no longer “free to control their intake of refugees” (Lavenex 1999, p. 24), it is said. This is

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especially so because of Article 33 of the convention, which prohibits the expulsion or return of asylum seekers (UNHCR 2010). Thus, asylum has been positioned between international laws and state sovereignty. Lavenex (1999, p. 9) explains this by saying: “the principle of the sovereign equality of states … entitles every state to unilaterally regulate the conditions of the entry, stay and exit of aliens on its territory”, however, she continues, “…this sovereignty is limited by universal principles of human rights and human dignity which have gained normative status especially since their codification in international law in the first half of the twentieth century”.

As a result, an exclusionary approach has emerged towards asylum seekers in the EU (Squire 2009, p. 6). The EU Member States have introduced “a range of policy measures to prevent, deter, limit the stay of, and manage the settlement of asylum seekers” (Gibney & Hansen 2003, p. 5). Therefore, it has been argued that the EU asylum policy actually aims “to reduce the number of migrants and asylum seekers coming to Europe” (Kaunert & Leonard 2012, p. 1396).

Thus, it is not an easy process for an asylum seeker to gain protection in the EU. The concept ‘fortress Europe’ is often referred to when discussing the situation asylum seekers face when coming to Europe, highlighting the difficulties they encounter in order to reach EU territory (Huysmans 2000, p. 754). Therefore, one might think that the most difficult step for an asylum seeker who is coming to the EU is gaining access to its territory. This may well be the case, but there are many other borders that asylum seekers have to face after entering the EU and before they are sometimes granted refugee status. We can think of these borders, following David Newman (2006, p. 179), as both – visible (such as territorial borders) and invisible (such as cultural borders).

The thesis has a twofold research objective. First, I research what are these internal borders that are intended to exclude asylum seekers from the protection they are eligible for before the final decision on their applications has been made? Second, how do the borders affect asylum seekers so that the EU Member States can successfully carry out their exclusionary approach? In order to examine these questions, it builds on the study of the situation of asylum seekers in Malta. After the analysis, I will be able to identify the key borders by which the EU and its Member States limit the protection of asylum seekers within the EU. The thesis, then, will

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allow us to better understand the often very difficult processes asylum seekers go through before sometimes accessing protection.

To answer these research questions, the thesis is structured in the following way. The next chapter, Chapter 2, outlines the conceptual framework applied throughout the research. The framework consists of three key concepts – securitization, protection and borders. Each one of them is introduced and their relevance for the thesis clarified. The research design, types of data used and reasoning for Malta being the case for my case study are presented in Chapter 3. Chapter 4 is the chapter that presents and analyzes the five main borders faced by asylum seekers in Malta. It finds that these are Malta’s strict detention policy and access to four welfare services – housing, education/training, employment and finally health care. Each one of them is systematically presented – first the legal framework for asylum seekers regarding each border is introduced and then the difficulties that asylum seekers face within each of these borders are analyzed. After this more descriptive chapter of the borders, an analytical chapter of how these borders actually affect asylum seekers follows. In this chapter I analyze how each of the borders, either separately or collectively exclude asylum seekers from the protection they are entitled to under international refugee laws. Thus, in this chapter Malta’s exclusionary approach towards asylum seekers is analyzed. Finally, Chapter 6 is the concluding chapter in which I present the two key findings of the research and suggest topics for future researches.

2. Securitization, protection and borders

In this chapter my aim is to develop a conceptual framework based on three main concepts – securitization, protection and borders. Forced migrants, so also asylum seekers, are the ones that “present the greatest challenge to the concept of sovereignty and integrity of the border” (Guild 2003, p. 334). The fact that since the signing of the 1951 Geneva Convention states cannot return asylum seekers to their countries of origin seriously weakens the border regime (ibid.). The 1951 Geneva Convention states that its signatory states have the responsibility to protect asylum seekers. This, however, affects the protector state’s internal security because due to asylum seekers having “a right in international law to breach the security of the border”, the state’s borders can no longer entirely protect it (ibid.) Consequently, as Guild (2003, p. 334) puts it: “By reconfiguring national security as territorially placed, … the EU Member

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States have placed the forced migrant and his or her security at the centre of the debate about national security”. Thus, asylum is now often linked with terrorism – it has been securitized. Securitization, furthermore, may lead to a denial of protection, as it lets states use extraordinary measures to limit the number of people seeking asylum within it (idem., pp. 341 – 342; Nyers 2003, p. 1069).

First, securitization is discussed, as this approach is useful for understanding how asylum seekers have been framed into threats. The second concept explained is protection. With regard to asylum, the concept of protection is a complex one because it challenges the state’s traditional need for protecting its citizens. Nowadays, states also have to provide protection for people fleeing persecution. This protection dilemma is introduced in sub-chapter 2.2. Lastly, the notion of borders is explained. Borders are of high importance for this thesis because they, since not being solely territorial ones anymore, are made to function, among other things, as restrictions for asylum seekers to gain protection. This thesis also goes beyond the traditional study of territorial borders and discusses non-territorial and invisible borders, so these are defined in sub-chapter 2.3.

Before moving to the conceptual framework, let me first distinguish between asylum seekers and refugees by defining the two concepts. According to the 1951 Geneva Convention (UNHCR 2010, Article 1):

a refugee is an individual who “owing to well-founded fear of being

persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

An asylum seeker, however, is “an individual who has sought international protection and whose claim for refugee status has not yet been determined” (UNHCR 2013(a), p. 5). Therefore, being an asylum seeker is to be an individual who has left their country of origin due to fear of persecution, but who has not yet been recognized as a refugee by another state. It is important to note that for the purpose of this thesis I use the

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terms asylum seeker and refugee for describing individuals who are in fact genuine refugees and thus I exclude the claim that some asylum seekers might actually be economic migrants (Huysmans 2006(a), p. 58). Having made this distinction, now I move to the first concept – securitization.

2.1. Security, threats and securitization

In 1995, Ole Wæver, as part of the Copenhagen School, introduced the concept of securitization. Securitization is a particularly important concept for this thesis, as it explains why asylum seekers are viewed as security threats and also why the EU and its Member States create borders that complicate asylum seekers’ access to protection. Thus, in this section I first shortly introduce the widening of security studies and then discuss the securitization theory as defined by the Copenhagen School, which is that through a speech act an object can be turned into a security issue. I do not, however, make use of the theory to see whether or not asylum seekers have been framed into being threats. They have. I use securitization theory to explain why the EU Member States have adopted an exclusionary approach towards asylum seekers and what the means or borders are that they use to limit asylum seekers’ access to protection. Starting in the 1970s and 1980s, people doing Security Studies and International Relations began challenging the military-state centric view of security studies and emphasized the need to widen this field of studies. Their reasoning was that “the narrowness of the military state-centric agenda was analytically, politically and normatively problematic” (Buzan & Hansen 2009, p. 187). Consequently, in the 1970s and 1980s, economic and environmental sectors were added to security studies, followed by issues relating to identity and transnational crime in the 1990s (Buzan et al. 1998, p. 2). The main reason for the shift to a wider range of security studies was the fact that security actors had started claiming that the world was being threatened by new and non-military threats, for instance threats produced by non-state actors, which encouraged security scholars to study these threats and their development (Huysmans 2006(b), p. 6). The widening of the security agenda is believed to aid the security study field by providing a broader range of knowledge and understanding of security: “we want to construct a more radical view of security studies by exploring threats to referent objects, and the securitization of those threats, that are nonmilitary as well as military,” write Buzan et al. (1998, p. 4).

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In the 1990s, the Copenhagen Peace Research Institute, also known as the Copenhagen School, introduced the securitization theory. Members of the Copenhagen School – Ole Wæver, Barry Buzan and Jaap H. de Wilde are the founders of the theory, having written the book Security: A new framework for

analysis, which pioneers the theory. In this book, the authors define security as

follows:

““Security” is the move that takes politics beyond the established rules of the game and frames the issue either as a special kind of politics or as above politics. Securitization can thus be seen as a more extreme version of politicization. In theory, any public issue can be … securitized (meaning the issue is presented as an existential threat, requiring emergency measures and justifying actions outside the normal bounds of political procedure). … The special nature of security threats justifies the use of extraordinary measures to handle them” (Buzan et al. 1998, pp. 21 – 24).

The predominant point of securitization, as the Copenhagen School sees it, is that an issue becomes a security question through discourse, or as Huysmans (2006, p. 90) puts it: “Security questions are politically ‘talked’ into existence”. Security is performative – it is a speech act through which securitizing actors frame an issue into a threat (Wæver 2011, p. 469). Security threats are socially constructed. Language is an important component of securitization, as it “not simply describes an event but … it mobilizes certain meanings that modulate them in rather specific ways” (Huysmans 2006(a), p. 7). Furthermore, language is a powerful tool through which actors can frame an issue into something that it might not even be – ““real rhetorical urgency” does not always equal the existence of a real threat”” (Balzacq 2010, p. 12). Therefore, with the help of the securitization theory, one can study the ways in which an issue is being framed into a security threat (Leonard 2010, p. 235).

Despite representing a significant development for security studies, the Copenhagen School’s securitization theory has faced several criticisms pointing to its weaknesses and proposing improvements. Some of the critiques question the meaning and extent of the audience and the speakers, others question how to ensure a successful securitization, and whether securitization can also take a non-discursive form (Neal 2009, p. 336). One of the main criticisms, however, comes from those scholars, like Didier Bigo and Jef Huysmans, who have adopted a sociological approach to this

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theory. According to them, the Copenhagen School overemphasizes the importance of discourse and ignores the securitization processes. Balzacq et al. (2010, p. 2) write that the Copenhagen School’s approach has “created a focus which is … far too oriented towards the discursive practices of these professionals [of politics] and, as such, neglects the study of conditions of possibility for the performativity of these narratives and everyday practices of societal agents”. They further argue that it is not enough to simply study the discourse to understand how security works, but that we also need to “examine the (perlocutionary) effects of these words, as well as the conditions of possibility of security practices” (ibid.). This sociological approach to the theory is also more relevant to this thesis, as I am not looking at the discourses that securitize asylum seekers (they have been securitized already). Instead, I look at the securitization practices, in this thesis defined as the borders that affect asylum seekers within the EU. Thus, in the next section I turn to the sociological approach to securitization.

2.1.1. Securitization processes

The speech act view of securitization, which is advocated by the Copenhagen School, argues that security threats are socially constructed – an issue is made into a threat through discourse. While the sociological approach agrees that threats are constructed, it does not see this process as necessarily happening through a speech act. The supporters of the latter argument, such as Didier Bigo, emphasize the study of the role of practice of securitization processes: “The practical work, discipline and expertise are as important as all forms of discourse” (Bigo in Leonard 2010, pp. 135 – 136). Furthermore, Balzacq (2010, p. 18) argues that to understand securitization, it should be seen as “a pragmatic (sociological) practice”. The sociological definition of securitization therefore differs from that of the Copenhagen School. Huysmans (2006, p. 153), for instance, defines securitization as:

“a multidimensional process [not a speech act] in which skills, expert knowledge, institutional routines as well as discourses of danger modulate the relation between security and freedom. This approach draws attention to both the structure of intelligibility – the logic of insecurity – and the technological nature of modern security practice. The central point of attention is not the threats that are defined in discourses of danger but

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processes through which fragmented practices are woven into domains of insecurity that are defined by the logics of security practice that traverse and connect events, institutional sites, skills, knowledge, etc.”

Thus, language is also an important component for the sociological approach to securitization; however, it adds that “the modulation of insecurity domains … crucially depends on technological and technocratic processes [too]” (Huysmans 2006(a), p. 8). The process of securitization is important for analyzing the practices that create an object into a threat (Balzacq et al. 2010, p. 2). Although Bigo does not provide us with a precise definition of securitization practices (Leonard 2010, 236), Reckwitz (in Balzacq 2010, p. 15) defines them as “a routinized type of behaviour which consists of several elements, interconnected to one another: forms of bodily activities, forms of mental activities, ‘things’ and their use, a background knowledge in the form of understanding and know-how, states of emotion and motivational knowledge”.

Similarly, another noteworthy scholar with the sociological approach to securitization is Jef Huysmans, who has introduced the notion of ‘security as a technique of government’. This concept emphasizes the importance of the technocratic analysis of security framing (Huysmans 2006(a), p. 6). As mentioned above, the construction of security questions depends on technological and technocratic processes and these processes can precede the political framing of a threat and they might not have had the initial aim of securitizing a phenomenon (idem., p. 8; Balzacq 2010, p. 2). An example of this is the lining up for passport control when entering the EU, where EU citizens stand in one line and third country nationals in another, thus separating the two groups (Huysmans 2006(a), p. 8.). Huysmans (idem., p. 9) then identifies three techniques: “(1) a particular method of doing an activity which usually involves practical skills that are developed through training and practices, (2) a mode of procedure in an activity, and (3) the disposition of things according to a regular plan or design”.

Furthermore, the sociological approach is more suitable for the study of securitization processes in the EU asylum and migration policy. According to Leonard, the reasons for that is that asylum and migration are not new threats for the EU. The perception of asylum as a threat has been present in security studies since the 1980s (see 2.2.), thus it is a “persistent and recurrent security threat” (Leonard 2010, p. 236). Not being a

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new threat, the study of discourse would likely turn out to be misguiding, while the study of securitization practices allows us to analyze the securitization dynamic (ibid.).

The securitization theory is used in this thesis not to study whether or not asylum has been securitized in the EU. Asylum has been securitized and there has been a wide range of studies on this topic (see Huysmans 2000; Leonard 2007 & 2010). Instead, the theory is adopted to explain why the EU and its Member States have employed an exclusionary approach towards asylum seekers and to research the contentious practices – or borders – through which the EU and its Member States limit asylum seekers’ access to protection. Securitization allows us to make two observations on the protection of asylum seekers within the EU. Firstly, due to the fact that asylum has been securitized within the EU, i.e. asylum seekers are seen as threats to EU internal security, the politics of protection dilemma has emerged. As discussed in the following section, this dilemma is about whom to protect – under international laws, states have to protect asylum seekers, but since they are also seen as threatening the states’ citizens, states should enhance the protection of their citizens. Secondly, by securitizing asylum the EU has gained ground for using extraordinary measures against asylum seekers, for instance to enhance external border control, to increase the Union’s protection and limit asylum seekers’ access to protection.

2.2. Politics of protection

The second concept within this conceptual framework is protection. Asylum is usually discussed in terms of securitization. However, I also want to focus on the question of protection. The relationship between state authorities and asylum seekers is framed in terms of a protection dilemma or trade-off: it is assumed that the protection of asylum seekers limits the protection of citizens. This is the dilemma of the politics of protection, as since agreeing on the 1951 Geneva Convention its signatory states are obliged to protect those asylum seekers who arrive at the state’s territory. But due to securitization these asylum seekers are also seen as threats endangering the state’s citizens. Thus, in this section I first present the meaning of protection and then elaborate more on the politics of protection and the dilemma it brings to the EU Member States.

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First, what is protection? Elizabeth Ferris (2011, p. 1) defines protection as the process “[t]o defend or guard from danger or injury; to support or assist against hostile or inimical action; to preserve from attack, persecution, harassment, etc.; to keep safe, take care of; to extend patronage to: to shield from attack or damage”. If security is about life and death, protection is about the right to life (Bigo 2006, pp. 93 – 94). Regarding asylum seekers, protection should take place when, for instance, the individual fears persecution.

For a state, protection means protecting its citizens and territory. However, as Huysmans (2006(b), pp. 6 -7) argues, individual security should be prioritized over state security. Traditionally, to ensure the protection of its citizens, a state created a strong and safe external border that would stop enemies from entering the state’s territory (Bigo 2006, p. 88). Nowadays, however, this technique of protecting has weakened and new ones have evolved. Bigo distinguishes three discourses of protection that create four different techniques or technologies of protection. The first discourse is the traditional one – about the protection of territory, clearly distinguishing the inside from the outside and emphasizing the protection of borders in order to keep the enemy out of the territory (idem., p. 88). The second one is surveillance within the state, which looks for the threats already inside the territory and decides which areas should be prioritized for protection (idem., p. 89). Lastly, the third discourse is about the movement of people, which challenges the significance of external borders as techniques of protection and instead emphasizes monitoring the movements of people, both inside and outside a state (ibid.). Turning to the four technologies, the first is what Bigo calls the ‘shield’ – shielding the state so that it becomes more difficult for the enemy to attack it; the second one is the so-called ‘container’ – enclosing the population into one secure territory, which the enemy has difficulty reaching; the third technology is monitoring – establishing surveillance inside the territory in order to protect the individuals; and finally, the fourth technology is policing at a distance – policing outside the state’s territory in order to anticipate future threats to the state (idem., pp. 94 & 98). The last technology – “to monitor individuals and groups at a distance” – is, according to Bigo (idem, p. 84), also “the dominant contemporary framing of protection”. These four technologies aid security studies, as they are the everyday processes through which objects are being securitized.

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Furthermore, according to Huysmans, it is important to consider the following three questions when studying the politics of protection. These are: “(a) Who can legitimately claim a need for protection?; (b) Against which dangers can they legitimately make these claims?; and (c) Who is going to do the protecting?” (Huysmans 2006(b), p. 2). These are also the questions that define the politics of protection and for this thesis the question (c) is of particular interest, as questions (a) and (b) are answered in the above stated 1951 Geneva Convention definition of refugees. As already mentioned above, however, the traditional answer to these questions is the orthodox understanding of security about “the duty of the state to protect its citizens and the national territory from each other and from unwanted penetration” (idem., p. 1). Since citizens’ protection should be prioritized, citizenship has an important meaning. Hindess (2000, p. 1489) describes citizenship as “a conspiracy against the rest of the world” because states often “discriminate in favour of their citizens”. States have to protect their citizens from the unknown and uncontrollable risks that we face in what Ulrich Beck calls the ‘world risk society’ of the 21st century (Beck 2002, p. 41). Consequently, states have to protect their citizens from other states’ citizens, as those are the unknown citizens. I will return to this thought below.

However, based on the above definition of protection – that it is about the right to life and that it takes place when there is, for instance, a fear of persecution, it becomes clear that it is not only the citizens of a state who are eligible for protection. Everyone who fears persecution should be protected. But who should protect (question (c)), for instance, stateless people or people whose country of origin does not or cannot protect them – like asylum seekers? Returning to the three questions stated in the previous paragraph, for asylum seekers the 1951 Geneva Convention is an important document. The above-stated definition of refugees answers the first two questions: who should be protected and against what dangers? The convention also states that its signatories are obliged to provide protection for asylum seekers who arrive in their territory, thus also answering the third question – the protector should be the country to which territory the asylum seeker has arrived. In practice, however, it is more complicated. It is not “a right of the refugee to be granted asylum” but rather “the sovereign right of states to grant asylum” (Lavenex 1999, p. 12), and furthermore the signatory states of the 1951 Geneva Convention cannot “expel or return (‘refouler’) a

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refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group or political opinion” (UNHCR 2010, Article 33). Thus, states try to limit asylum seekers’ access to their territory to avoid this responsibility (James 2014, p. 209). Therefore, due to this exclusionary approach, it is not very clear who should provide protection to asylum seekers.

Here a dilemma arises for a state between protecting its citizens and protecting asylum seekers. This dilemma is the politics of protection. Huysmans (2006(b), p. 2) defines the politics of protection as: “not simply a rational, rhetorical or emotional business of exchanging arguments and conflicting views on what kind of protection should prevail. The politics is also a struggle for entering the debate so that one’s voice is heard as well as a struggle for domination of different agencies expressing different views”. All EU Member States have to protect the individuals who arrive at the state’s territory to seek asylum. However, asylum seekers are not only seen as those in need of protection, but also as threats to a state and its citizens. Here I return to Beck’s argument that nowadays risks are usually unknown. Bigo (2002, p. 71) writes: “[m]igrant, as a term, is the way to designate someone as a threat to the core values of a country”. Hindess (2000, pp. 1490 – 1491), too, argues that “noncitizens arriving at national borders are all too easily seen as suspect” and that it is “normal and acceptable for states to discriminate between their own citizens and others”. Some of the claims why asylum seekers are seen as security threats include: they threaten the identity of people, terrorists might pretend to be asylum seekers in order to enter a state’s territory, and they take national citizens’ jobs thus increasing unemployment among the nationals (Huysmans 2006(a), pp. 64 & 77). “Securitization of migration in the EU and its Member States has developed on the basis of three relating themes: internal security, cultural security and the crisis of the welfare state,” argues Huysmans (2000, p. 758). Asylum has been securitized and it has lead to changes in the notion of protection resulting in restricted access to protection for asylum seekers (Nyers 2003, p. 1069).

However, the framing of migration as a security threat is a recent phenomenon in Europe. Until the end of the Cold War, migration was not seen as a security threat. In fact, in the 1950s and 1960s, immigrants coming to Europe were often welcomed, as there was a shortage in labor in many western European countries (Huysmans 2000, p.

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753). Migration as a security question largely developed at the end of the Cold War – the refugees who broke down the Berlin Wall were framed as an occurrence where increased flows of people can turn out to be dangerous for state authorities (Huysmans 2006(a), p. 17). However, the Single European Act, which introduced the free movement of goods, people, capital and services, also raised the awareness that migration should be controlled in order to ensure stability within the EU (Huysmans 2000, p. 758). Thus, it was in the 1980s and 1990s when the concept of ‘fortress Europe’ – a concept used to explain the way the EU limits asylum seekers’ access to the Union’s territory – gained recognition (Rees 2010, p. 103). Since then, the EU has often been using an exclusionary approach towards asylum seekers. The exclusionary approach is probably most visible at the EU’s external borders – the Union is constantly improving its external border control so as to be able to successfully monitor who leaves and who enters its territory and thus also to deny access to unwanted people. Furthermore, since the 9/11 terror attacks external border control has been strengthened even more, and moreover, lately asylum has often been linked to issues of terrorism, drugs and crime (Huysmans 2006(a), p. 71). I want, however, to look at the exclusionary approaches inside the EU by which the states try to escape their obligation to protect asylum seekers.

There is no doubt that the fortress Europe has made it more difficult for asylum seekers to reach the EU’s territory. This has lead to asylum seekers choosing more hazardous ways of crossing the EU’s external borders and paying human traffickers to help them cross the borders (El-Enany 2013(b), p. 182). Still large numbers of asylum seekers have entered the EU legally and have overstayed after their visas have expired (Huysmans 2006(a), p. 70). Consequently, one would assume that control of external borders is not the only technique for the EU and its Member States to limit asylum seekers’ access to protection. It is probable that there are also other means by which the EU and its Member States try to limit the access to protection for asylum seekers who are already within the Union. This is where the politics of protection become highly useful for the thesis. Questions like: does the entrance into the EU ensures protection or is there more to that? What kind of protection is provided to asylum seekers? How are asylum seekers protected: are they simply allowed to reside in the country that protects them, or are there other components of protection too? I will return to the notion of politics of protection and will try to answer these questions in

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Chapter 5, in which I will analyze the techniques or borders the EU and its Member States, particularly Malta, use to provide better protection for their citizens by limiting asylum seekers’ access to protection.

In summary, under the 1951 Geneva Convention the EU Member States have agreed to protect asylum seekers who arrive in their territory. However, one of the main duties of the state – to protect its own citizens – is challenged by this convention, as due to securitization asylum seekers are being seen as threats to a state and its citizens. To solve the problem of who to protect – its citizens or asylum seekers, the EU and its Member States have adopted exclusionary approaches towards asylum seekers. They have made the EU into a fortress Europe, thus complicating the ways for asylum seekers to reach EU territory and seek protection. However, the question that arises is how do the EU and its Member States deal with asylum seekers who have already crossed into the fortress Europe? Thus, in the next section I introduce and discuss the third concept of this conceptual framework – borders, which should help me answer the above question.

2.3. Borders

Borders are crucial for state security, as their control is expected to protect the state from external threats. However, due to securitization and increased border controls, borders are significant obstacles for asylum seekers to reach the protection that they deserve under international laws. Thus, in this sub-section I discuss the notion of borders – how it has changed over time, what are the borders in current times, and how borders benefit this thesis. This sub-section argues that borders are no longer solely the territorial edges of states.

First, I will present the traditional understanding of borders. Borders used to be perceived as lines that are located at a state’s outer edges and that divide one state from another (Rumford 2012, p. 888). Thus, borders were frontiers. Already in 1908, Curzon (in Walters 2002, p. 563) defined frontiers as “the razor’s edge on which hang suspended the modern issues of war or peace, of life or death of nations … Just as the protection of the home is the most vital care of the private citizen, so the integrity of her borders is the condition of existence of the State”. Borders were very central to states because they defined their territories. Giddens (in Rumford 2006, p. 164) has argued that “borders only come into existence with nation-states”. Borders did not

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only delineate a state’s territory, but they also protected states from external threats. The protection of a state’s internal security was achieved by sealing the state’s external borders. Van Houtum and Gielis (in Parker & Vaughan-Williams 2012, p. 728) call this the ‘container-box’ model of states.

Nowadays, however, borders have become a more complex concept. The development of borders has significantly reframed our understanding of them (Rumford 2006, p. 156). Borders are no longer simply lines drawn to separate states. Borders take many different forms. Rumford (ibid.) quotes Etienne Balibar who has written: “[b]orders are being both multiplied and reduced in their localization and their function, they are being thinned out and doubled … the quantitative relation between ‘border’ and ‘territory’ is being inverted”. The reason for such development of borders is linked to globalization. The increase in mobility of people, goods, capital and services has led to the development of new borders that would better control this mobility (idem., p. 164). This is so partly because in the globalized world of today, it is almost impossible to completely close a state’s external border (Newman 2006, p. 182). It is not true anymore that the important borders are only the external borders. Important borders can be very different from one another and can be located in variety of locations (Rumford 2012, pp. 887 – 888). Moreover, borders are in a constant state of change. As Parker and Vaughan-Williams (2012, p. 728) write: “the border is not something that straightforwardly presents itself in an unmediated way. It is never simply ‘present’, nor fully established, nor obviously accessible. Rather, it is manifold and in a constant state of becoming”.

Due to the present day diversity of borders, also their definition varies greatly. Elspeth Guild (in Vaughan-Williams 2008, p. 63), for instance, claims that EU borders can be found anywhere, but that these borders are located “where a control takes place on the movement of subjects into or within the European Union”. This definition, however, is not entirely correct, because borders have much more diverse functions. Furthermore, Gerard Delanty (2006, p. 183) argues that the new borders have replaced the old ones, but this is also not entirely true, as there still exist the traditional borders at the edges of states that are clear and closed lines between two states (the US – Mexico border, for instance) (Parker & Vaughan-Williams 2009, p. 586). The importance of the old borders has been reduced, but nevertheless they still

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continue existing together with the new ones. One of the most successful definitions is the one by David Newman (2006, p. 172), who writes:

“We woke up to our borderless world only to find that each and every one of us, individuals as well as groups or States with which we share affiliation, live in a world of borders which give order to our lives. We discovered that these borders are not confined to the realm of inter-state divisions, nor do they have to be physical and geographical constructs. Many of the borders which order our lives are invisible to the human eye but they nevertheless impact strongly on our daily life practices. They determine the extent to which we are included, or excluded, from membership in groups, they reflect the existence of inter-group and inter-societal difference with the ‘us’ and the ‘here’ being located inside the border while the ‘other’ and the ‘there’ is everything beyond the border.”

Borders can be many different things. Rumford (2012, p. 895) explains that borders can be barbed-wire fences or a brick wall, as well as a symbolic boundary. The main reason for forming borders is fear. Fear is “the true essence of borders, past and present, territorial or aspatial” (Newman 2006, pp. 177 – 178). Fear from the other, the unknown encourages us to build borders between ‘us’ and ‘them’. We decide who belong to the ‘us’ and who should be excluded. Thus, borders are socially constructed (idem., 174).

Because borders are so diverse and frequently encountered, they have different effects on different groups of people. The same border might be experienced differently by different people (Rumford 2006, p. 159). One border might be very difficult to cross by some people, while at the same time others would not even notice it (idem., pp. 156 – 157). It is often the unwanted people, so also asylum seekers, who find it much more complicated to cross some borders. This is so because, as Guild (2003, p. 332) argues, “the right to cross borders [has become] a security issue”. Therefore, some of the borders “systematically influence injustice on outsiders”, writes Anderson (1996, p. 150). And thus by making it more difficult for some to cross borders – in this case for asylum seekers – states sometimes “refuse them [the right] to live” (ibid.). For example, to successfully enter a country, the individual has to have the right documents. However, asylum seekers often do not have these documents just because they could not get them (Guild 2003, p. 345). Thus, for asylum seekers, for whom

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crossing the border is “an existential issue … to survive … it [is] the hardest to cross” (Newman 2006, p. 178).

For this thesis the two important features of the new understanding of borders are that they can be both visible and invisible, as well as that they can be located both inside a state and at its edges. Since the external borders cannot completely ensure that unwanted people will not cross them, states have to have internal borders as well (Rumford 2006, pp. 156 – 157). Some of the most common internal borders are found at airports and ports, where authorities check individuals before letting them board a plane or a ship (Parker & Vaughan-Williams 2012, p. 730). Another way to ensure internal security is through surveillance inside the country (Rumford 2006, pp. 156 – 157). As Guild (2003, p. 345) puts it: “the enemy inside will be hunted down by the security services”. Other inside borders that are more relevant for this thesis are, for instance, Geddes’ (2005, pp. 789 – 790) presented functional or organizational borders, which limit asylum seekers’ access to the labor market and the welfare state, and the conceptual borders, which are linked to asylum seekers’ belonging to and identification with a specific group.

The borders presented by Geddes are also the invisible borders. Despite Aristotle’s argument that in order for borders to function they must be visible (in Rumford 2012, p. 892), borders can be invisible and they can be highly functional too. Newman (2006, p. 177) writes that borders “may be as invisible as they are tangible and, equally, as perceived as they are real”. Invisible borders can be as simple as: because I do not like you I build a border between us and thus I create the ‘us-them’ cut-off point (ibid.). However, they can be more complicated and very hard to cross too. According to Newman (idem., 178), crossing the cultural border is much more difficult than crossing a state’s physical border. Therefore, although an asylum seeker has crossed the EU’s external border and is inside the Union, it does not necessarily mean that the asylum seeker will face no more complications and will enjoy full protection. “One border (the physical) has been crossed while a new one (cultural) presents itself which may never be crossed successfully in their [asylum seekers] lifetime” (idem., p. 179). A further point to be made here is that some borders can be both visible and invisible, as Rumford argues (2012, p. 892). They can be invisible to the majority of people, while visible to the few that they affect (ibid.).

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unwanted people crossing them. Therefore, these unwanted people can also be found within the Union. Due to securitization, asylum seekers are also among those who are labeled as ‘unwanted people’. Although asylum seekers have the right to protection under international law, states usually tend to prioritize their own citizens when the question of protection is raised. In order not to breach the 1951 Geneva Convention, the EU has adopted an exclusionary approach towards asylum seekers and consequently the asylum seekers find it harder to reach the EU. Nevertheless, some asylum seekers manage to cross the Union’s external border. So how does the EU and its Member States deal with those who have successfully entered the Union? Because of the politics of protection dilemma, I expect that the EU and its Member States adopt an exclusionary approach towards asylum seekers also within the Union. Therefore, in Chapter 4 I will analyze if the EU and its Member States, particularly Malta, make use of internal and invisible borders in order to avoid their responsibility to protect asylum seekers. Before that, however, in the next chapter I outline the methodological framework and explain the reasons for using Malta as the case study.

3. Methodology

This chapter introduces the methodological framework applied in the thesis. This thesis applies a qualitative research design. The data was collected by applying secondary analysis of both primary and secondary sources. Furthermore, a case study was carried out to reach my research objectives – to find out what the borders facing asylum seekers who seek protection in the EU are. It was a single case study with Malta being the case. Before explaining why I selected Malta as the case, I provide a short historical overview of the country’s migration trends. Then, I finish the chapter by explaining the reasons for selecting Malta as the case, which are the high number of asylum applications it receives with respect to its population, as well its strict detention policy. As a result Malta serves as an extreme case. Consequently, by analyzing an extreme case I will be able to present the most accentuated findings.

3.1. Research design

This thesis builds on a qualitative research design, generating data through document analysis. It is based on a single case study. Document analysis will be applied by making use of secondary analysis of both qualitative and quantitative data – mostly

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NGO reports (see 3.2). Secondary analysis allows me to analyze the data that other researchers have collected (Bryman 2012, p. 312). The main advantage for me of doing a secondary analysis is that it allows me to access a broad range of high-quality data (idem., pp. 312 – 313). Bryman (ibid.) argues: “Many of the data sets that are employed most frequently for secondary analysis are of extremely high quality”. Other advantages of such research include that more time will be available for data analysis as well as the fact that the analysis of someone else’s findings might result in new interpretation of that data (idem., pp. 315 & 586). The disadvantages, however, include lack of familiarity with the data, which might lead to its misunderstanding, as well as the possibility of analyzing faulty data (ibid.; May 2011, p. 192). To avoid this, it is crucial to be careful with the selection of the material. Additionally, when conducting research based on secondary analysis, it is important to acknowledge that the documents are based on the author’s own interpretation of the data (Ramage et al. 2009, p. 598), as well as the fact that my presented analysis is influenced by my own interpretation. Nevertheless, I tried to remain as objective as possible when doing the secondary analysis to ensure more reliable findings.

3.2. Primary and secondary sources

This section outlines the types of sources used for my thesis. Throughout the thesis I make use of secondary analysis of written data sources, which consist of both primary and secondary sources. Using both types of sources lets me access and analyze a broader range of data. During the sources selection process, particular attention is paid to the authenticity, credibility, representativeness and meaning of the sources, as these are the four criteria that indicate documental quality (Bryman 2012, p. 562). Thus, the primary sources are official documents and NGO reports, and the secondary sources are collected from academic journals and proofread books.

For the primary sources, I look at three types of sources: official documents from the EU and Maltese government, reports and statistics from intergovernmental organizations, and documents and reports from nongovernmental organizations (NGOs). Of the first type of source – the official documents – the legal texts, such as ‘the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers’ and Malta’s ‘Reception of asylum seekers (minimum standards) regulation’ are particularly important. These documents

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will be used to present the legal rights of asylum seekers in the EU and Malta, as well as the EU and Maltese legal responsibilities regarding asylum seekers’ reception. As to the intergovernmental organizations, the United Nations High Commissioner for Refugees (UNHCR), for instance, provides particularly useful documents for my thesis. Its main focus being the issues concerning refugees, the UNHCR publishes many statistics and reports on asylum. The main document for refugees’ rights and states’ obligations – the 1951 Geneva Convention – was prepared by UNHCR. Finally, nongovernmental organizations, such as Amnesty International and the Jesuit Refugee Service in Malta (JRS Malta), provide highly useful reports on the situation of asylum seekers in Malta. The use of these three types of primary sources provides me with more diverse views on the issue of asylum, because often the viewpoints of the different organizations – officials, intergovernmental organizations and NGOs – differ. For instance, often the reports by NGOs, such as Amnesty International, tend to be more critical of the situation of asylum seekers within the EU than the report by the EU. Another advantage of using these primary sources is that they tend to provide more reliable data than do secondary sources, since secondary sources are the authors’ interpretations of data.

Nevertheless, secondary sources, too, are highly beneficial for my thesis. The secondary sources used in this thesis are articles and chapters from proofread academic journals and books. The content of the articles and book chapters mostly relates to issues around asylum in the EU and particularly in Malta. The secondary sources aid my thesis by providing different scholars’ viewpoints on the topics discussed, as well as for supporting my own arguments. Thus, the information collected from academic journals and book chapters will be used for developing more credible arguments around the data found in primary sources.

3.3. Case study

The research method of this thesis is a single case study, with Malta being the case under investigation. Thus, in this section I first explain why I have chosen to do a case study followed by reasons for picking Malta – an extreme case, as the most suitable case for my research.

Robert Yin (1989, p. 23) defines the case study as an empirical inquiry, which “investigates a contemporary phenomenon within its real-life context; when the

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boundaries between the phenomenon and context are not clearly evident; and in which multiple sources of evidence are used”. The case study is highly useful for developing our knowledge on social and political phenomena (idem., p. 14). Therefore, this research method fits very well with my research aim, which is to do a thorough study of the protection asylum seekers receive in Malta. A case study allows a researcher “to illuminate a decision or set of decisions: why they were taken, how they were implemented, and with what result” (emphasis in the original; Schramm in Yin 1989, pp. 22 – 23). Since the first question has already been answered in the previous chapter – that due to securitization and the politics of protection asylum seekers face more difficulties when seeking protection, the case study method will help me answer the last two questions. Bryman (2012, p. 70) outlines five different types of cases. These are: critical cases, extreme or unique cases, typical cases, revelatory cases, and longitudinal cases. Malta can be seen as an extreme case. I will explain why in the next section.

The reason for doing a single case study, not a comparative or multiple-case study, is that it allows me to do “an intensive examination of a single case” (idem., p. 71), which in this research is Malta. Doing a single case study coincides better with my research objectives – to interrogate what borders are used in the EU to limit asylum seekers’ access to protection. Firstly, if doing a multiple-case study with the time and length limit I have, I would not be able to conduct as comprehensive research study as I am now. Secondly, having chosen an extreme case, I wish to present a research that shows one of the most problematic cases in the EU. If I had selected several cases, unless they were all extreme ones (which, however, would not significantly change the findings), I would not be able to illustrate the most problematic picture regarding asylum and the EU, but instead I would illustrate a random case of borders asylum seekers face in the EU. In such a case I would, nonetheless, find some of the borders faced by protection seekers, but they would not be as worrying and alerting as those found in an extreme case.

When discussing case study as the research method, scholars often point to its main weakness – its lack of ability to generalize. Bryman (2012, p. 69) rightly questions: “How can a single case possibly be representative so that it might yield findings that can be applied more generally to other issues”? It is true that the borders I find which asylum seekers face in Malta cannot be claimed to be the same borders faced in the

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whole EU. However, this critique does not apply to my thesis, as my aim is not to generalize the finding, but instead to present possibly one of the most accentuated cases within the EU.

According to Yin (1989, p. 52), “[a] major step in designing and conducting a single case is defining … the case itself”. Thus, in the next section I explain why Malta is best suited for my thesis.

3.3.1. Malta – an extreme case

Before justifying why I have chosen Malta, it is useful to provide a short background of Malta and its migration history. According to Durick (2012, p. 22), the knowledge of Malta’s history, geographical location and culture helps us understand the slow development of Malta’s asylum policy. Malta’s geographical location – in the Mediterranean Sea – has been seen by the imperial powers as very important. Malta was under colonial rule for many years, mostly under the French and the British. Only in 1964, after almost 200 years of colonization by the British, did Malta gain independence (Bradford & Clark 2014, p. 11; Durick 2012, p. 23). However, it was only in 1979 when the British withdrew their military base from Malta, leaving a noteworthy colonial legacy (ibid.). Consequently, Durick (2012, p. 23) argues, the Maltese are highly protective “of their independence and reputation as a self-sufficient, peaceful, neutral, Roman Catholic nation with free health care and education and no military alliances”.

Migration trends in Malta have changed remarkably over time. During the period from the 1950s until the 1980s, Malta experienced large emigration flows to countries like the United States, Australia, the United Kingdom and Canada (European Migration Network 2010, p. 23). Increases in the inflows of asylum seekers began only in the 1990s, with protection seekers mainly coming from Yugoslavia, Albania and Iraq (ibid.). The number of arrivals, though, was very small in comparison to what Malta experienced starting in 2002. For instance, in 2000 Malta received only 71 asylum applications (UNHCR 2003, p. 7); thus asylum was not seen as a problematic phenomenon (Mainwaring 2012, p. 687). In 2002, however, the number of asylum applications increased by almost a factor of 7, standing at 474 (UNHCR 2003, p. 7). Since then the number has been steadily growing, with only the year 2010 seeing a

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significantly low number of asylum applications – 1401 (UNHCR 2014, p. 22). The latest data available indicates that in 2013 Malta received 2,200 asylum applications (ibid.).

The high numbers can be attributed to Malta’s location and its membership in the EU (Durick 2012, p. 27). Being located in the Mediterranean Sea, Malta is the southernmost EU Member State (DeBono 2013, p. 61). Thus, Durick (2012, p. 27) writes, Malta “serves as a bridge between Europe and North Africa”. Since a large number of asylum seekers in Malta arrive by boat – around 87 per cent of all applicants in 2012, most of them come from or through North Africa (Maltese National Contact Point of the European Migration Network 2013, p. 20; UNHCR 2014, p. 40). The five leading countries of origin of asylum seekers in Malta in 2013 were: Somalia (1,008), Eritrea (471), the Syrian Arab Republic (250), Libya (108), and Nigeria (85) (UNHCR 2014, p. 40). As to the recognition percentage, although the overall percentage of positive decisions in 2012 was high – 71%, only 2.2% were granted refugee status and the majority or 61.2% were granted subsidiary protection (Eurostat 2013, p. 2). Furthermore, the Dublin II Regulation, which in Article 5(2) states that the asylum seeker has to apply for protection in the first EU Member State they enter (OJEU 2003(b)), puts a burden on the Member States having the EU’s external borders inside their territory, thus also Malta. Although many of the asylum seekers arriving in Malta had not planned for it to be their destination country (Lutterbeck 2009, p. 123), because of the Dublin II Regulation they have to stay in Malta.

The number of asylum applications submitted to Malta might not seem high if compared to other EU Member States. Indeed, it has only the 15th highest number of asylum applications in the EU. However, when considering the number of asylum seekers per inhabitant, during 2009 and 2013 Malta was the leading Member State with 20.2 applicants per 1,000 inhabitants (UNHCR 2014, pp. 14 – 15). In 2013, Malta received 4.8 applicants per every 1,000 inhabitants, which also was the highest number of asylum applicants per inhabitant (idem., p. 22). These statistics show the problem Malta faces concerning asylum seekers. Given the island’s small territory (316 km2) and the population density, which in 2010 was the highest in the EU –

1

The small number of asylum seekers arriving in Malta in 2010 is the consequence of the 2008 Italian – Libyan agreement on readmission and patrolling the Mediterranean Sea (Amnesty International 2010, p. 4).

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1,381 inhabitants per km2 (EU’s average was 116 per km2), the number of asylum seekers arriving in Malta leaves a big impact on the small country (Amnesty International 2010, p. 9; Bradford & Clark 2014, p. 10).

Another factor that makes Malta an extreme case is its detention policy. Malta automatically detains all irregular immigrants that arrive in its territory, regardless whether they are asylum seekers or not (Council of Europe 2011, p. 2). Durick (2012, p. 27) writes: “Malta’s policy of arbitrary detention stipulates that all irregular migrants, irrespective of their age or petition to apply for asylum, are placed in a closed detention center under either armed force or police supervision”. The reason for detaining all asylum seekers is that, according to the Maltese government, the number of asylum seekers in the small island is too large to allow them to move freely within the country (Lutterbeck 2009, p. 136). The Maltese detention policy will be discussed more in depth in sub-chapter 4.1.

Therefore, because of the high numbers of asylum applications Malta receives, especially with respect to its small population (which is a bit over 450,000) and because of its strict detention policy, Malta serves an extreme case – thus also a suitable case for my study. Furthermore, although most of the EU Member States have experienced an increase in the number of asylum seekers, Malta’s response to this phenomenon has been more extreme than that of the other Member States (Lutterbeck 2009, p. 143). Lutterbeck (ibid.) also claims that Malta is “the least immigrant-friendly country within the EU”. Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe wrote in his report after a visit to Malta in 2011 that the situation in Malta “poses some of the most pressing human rights challenges the country has to face” (Council of Europe 2011, pp. 4 – 5). Therefore, it is fair to say that Malta is an extreme case, and that was my aim when selecting the case to explore. A study of an extreme case better suits my research aims because Malta should allow me to present possibly the most extreme results, which would also be the most worrying and thus the most crucial to act on. If I had selected a more typical case, the results would not be as accentuated as I expect them to be in the case of Malta, and thus they would not show the most severe problems that asylum seekers face inside the EU.

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4. Asylum seekers and borders

Chapter 4 analyzes the borders that are set to limit asylum seekers’ access to protection inside Malta. After some research I have found that there are, in fact, such borders intended to either help the Maltese authorities to provide better protection to its citizens or to limit asylum seekers’ access to adequate protection. There are several of these – some minor ones, but others more direct and more effective. For instance, Pirjola (2009, p. 354) refers to these borders as filters, identifying three filters asylum seekers have to go through – access to the territory, access to the asylum procedures, and access to protection. Difficult access to social integration, too, can be seen as a border. IntegraRef2 (2008, pp. 13 – 14) identifies four domains of integration: markers and means (employment, housing, education, health), social connection (social bridges, social bonds, social links), facilitators (language and cultural knowledge, safety and stability), and foundation (rights and citizenship). Being aware that there are other borders (briefly introduced below), in this chapter I will look mainly at ItegraRef’s first domain – markers and means. This domain is also related to Pirjola’s third filter – access to protection, because as will be shown later, access to the four aspects of markers and means domain are included in the protection asylum seekers should have the right to receive. The reason for analyzing this domain is that on the EU level this integration domain is often defined as the main one for asylum seekers. It is largely so because it is widely believed that the less generous the reception conditions are, the more discouraging the country might seem for asylum seekers (Handoll 2007, p. 226). The reception conditions are seen as “a tool to discourage the entry of asylum seekers” (idem., p. 196). In 2003, the Council Directive 2003/9/EC was introduced, which establishes the reception conditions’ directive setting out the minimum standards for the reception of asylum seekers in the EU. This directive sets minimum standards for, among other things, the markers and means domain – access to employment, housing, education and health care (Kaunert 2009, p. 152). Yet, despite there being harmonized minimum standards for all EU Member States, the European Commission has argued that “the Reception Directive left too much discretion to Member States” (in El-Enany 2013(b), p. 177). Thus, despite the common standards, their application varies among the different Member States,

2

A project, co-financed by the European Commission, focusing on the integration of refugges inside the Union.

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making them an interesting aspect for interrogation.

The list of the borders faced by asylum seekers is not exclusive, but to be able to do a more in-depth analysis of the main borders I have selected five such borders that are thought to affect asylum seekers the most. The other borders not discussed in this research are, for instance, no free legal aid at the first stage of the asylum procedure (Schaa 2010, p. 11; Cachia 2013, p. 12). Communication problems are another border. Lack of interpreters and translations available in some of the services that in theory should be accessible for asylum seekers create more obstacles for them (Camilleri & Zammit 2012, p. 36). For instance, upon the arrival of asylum seekers, they are provided with an information booklet, which is, however, available only in three languages (Schaa 2010, p. 11). The communication border is also complicated by the fact that many of the service providers have not had appropriate training to work with asylum seekers (Camilleri & Zammit 2012, p. 39). Discrimination and racism, too, is a border that severely affects asylum seekers’ access to their rights and protection during the application process. Parts of the discrimination border are discussed in 4.2.3. Fsadni and Pisani (2012, pp. 22 – 23) write that “the Maltese are reportedly consistently the least supportive of migrants’ rights in the EU-27”. Racism can also be witnessed among the staff that works with asylum seekers. Camilleri & Zammit (2012, p. 39), for instance, write: “we were able to observe that some individual members of staff do harbor prejudices against migrants and asylum seekers”. Furthermore, such attitudes by the people directly involved with asylum seekers and on whom the asylum seekers have to depend can be dangerous and result in asylum seekers “being denied the benefits, treatment, care or services they require. They could also lead to an unacceptable lowering of the standard of care provided in certain cases” (ibid.). Furthermore, the fact that after the introduction of the Dublin II Regulation protection seekers can apply for asylum only in the first Member State they enter (OJEU 2003(b), Article 5(2)), limits their access to protection, as they are no longer able to do ‘asylum shopping’ – apply for asylum in several Member States thus increasing their chances of being recognized as a refugee (Calleya & Lutterbeck 2008, p. 5).

The five borders analyzed throughout this thesis are thought to be the main means for states to limit protection for asylum seekers. They are – access to housing, education, employment and health care, as well as the country’s detention regime. Detention