Why did European Commission warn against building a Hungarian-Serbian border fence?

Question

EU Warns Against New 'Walls' As Hungary Plans Fence On Serbia Border
Why is it so? After all, other EU countries have such fences on their external borders (e.g. Ceuta and Melilla) and I haven't heard of any objections from the European Commission. Does EU actually want to have illegal immigrants, as opposed to ones that have been verified as refugees? It makes no sense to me.

Answer 1

You can find a clue in a quote in the article you linked to:

“Any measure taken by EU member states to manage their borders and to deal with migratory flows has to be fully in line with EU laws and international obligations, including the respect of migrants' human rights and respect of the principle of nonrefoulement”

Basically, the main reason is that it looks very ugly, a bit like a new iron curtain, pushing back people who actually come from a country at war and really are refugees.

Importantly, the distinction between legal and illegal immigration isn't particularly useful to understand what's going on, especially when it comes to refugees/asylum seekers. For that's not how refugee law works. You first have to admit potential asylum seekers into the country to examine their application (which usually takes several months). International and EU law clearly specifies that a refugee cannot be punished for entering or staying in a country unlawfully. And they still have the right to see their application evaluated in any case.

Legally, the theory is that somebody trying to cross the border clandestinely (or simply presenting him or herself at the border and being denied entry) is supposed to be detained and then removed to any country that might take them (including either the country they are coming from or the country of their citizenship). That's happening at airports every day.

In this situation, the person should also get some information about her situation and a possibility to lodge an appeal. Thus, there are charities working in detention centres in airports and elsewhere to provide a bit of assistance to the people there. Simply “pushing back” people, outside of any procedure, like Spain did in Ceuta and Melilla is not acceptable in the EU and that's one more reason for the Commission to be skeptical of the fence plan.

Importantly, there is a major exception to all this: If you are caught somewhere crossing a border, you have a right to lodge an asylum application then and there. So, at an external Schengen border, you are supposed to at least get an opportunity to let yourself known as an asylum seeker before being sent back elsewhere.

In international law, that principle and the “non-refoulement” principle primarily apply to people who are coming directly from a country where they are under threat but in practice, if no other country is prepared to take them back, it does not make a big difference. So there is no doubt that, under current EU law, Syrians have a right to apply for asylum, whether they are crossing the border irregularly or not, and the only question right now in the Schengen area is which country has to examine their application.

Furthermore, many of the people in question really do have a genuine claim at asylum. That's exactly why European countries don't want them in the first place and try to offload the problem to each other through the Dublin system. Because once you let genuine refugees lodge an application, there is a decent chance you will have to grant them the status because they really do meet the requirements.

By contrast, ludicrous asylum applications from people who come from safe countries – of which there are many – aren't such a big problem. It takes a bit of time and money but you can ultimately reject the application and deport the person back to her country of origin. Not so with Syria, which is presently unsafe and uncooperative.

Finally, note that almost all Syrians currently trying to reach Europe are not coming directly from Syria and have actually been recognised as refugees in camps in Turkey, Lebanon or Jordan. But that does not mean that they can legally move to Europe or that there is any legal route to immigration simply because they are “verified” refugees.

The HCR does run some resettlement programs but only very few people benefit from them and trying to reach Europe by any means necessary is often the only hope left to escape the dreadful life in the camps. That's why the distinction between refugees and migrants is fuzzier than it might seem at first even though Syrians really are fleeing a war.

So in more than one way, the genuineness of their claim to asylum isn't at stake. If you look at it cynically, it's actually much easier to deal with “regular” illegal immigration than with credible asylum seekers, which is why many aspects of the law (including, e.g. airport transit visa requirement in the Schengen area) are designed to prevent the latter from even reaching the territory of EU member states.