An Interview with Professor Jacqueline Bhabha

An Interview with Professor Jacqueline Bhabha

An interview with Professor Jacqueline Bhabha

Earlier this semester Professor Jacqueline Bhabha came to the Fletcher School of Law and Diplomacy to speak to the 2017 LL.M. class about her research on the refugee and migration crisis. The Fletcher Forum of World Affairs sat down with Professor Bhabha to learn more about her research and experience working on refugee and migration issues. Professor Bhabha also shared some insights on recent political developments in the United States and Europe, and the impact these developments may have on immigration policy at-large. 

Fletcher Forum: What do you think have been the main challenges since the beginning of the high influx of migrants and asylum seekers in Europe? What are the challenges that lie ahead?

Jacqueline Bhabha: I think that one of the main past challenges has been the failure of European solidarity. That has been catastrophic, both for the European Union as an idea, and for the delivery of humanitarian protection. It has been catastrophic to see how limited the engagement with protection has been on the part of some EU Member States, leading others, such as Greece and Italy, to shoulder a disproportionate share of the protection responsibility, that they are ill-equipped to do. The failure to address safe transport and reception mechanisms has also led to disastrous humanitarian consequences as we are seeing. It has undoubtedly contributed to the increasing mortality rates in the Mediterranean. Just in the first four months of 2017 over 100 people a month have drowned. Instead of increasing access to safe routes and facilitating humanitarian protection, EU member states have worked to restrict access, to block the arrival of refugees, and to pressure Turkey into being a de facto buffer zone in return for financial and other incentives. 

The EU-Turkey agreement is severely flawed. It has led to a situation in which very large numbers of refugees are trapped in Turkey where living conditions are harsh, including a lot of children not going to school. Turkey now has more refugees than any other country in the world (close to three million), and this comes at a time when the country is sliding into dictatorship at a rapid rate. A problematic and regrettable development of European policies has been to compel increasing numbers of refugees to embark on more dangerous and longer routes to Europe via Libya and Italy, rather than the quicker route through Turkey.

Looking forward, many very substantial political challenges loom large. We are seeing an ongoing failure to provide clear, convincing, and principled leadership on the dual imperatives of accepting refugees and other distress migrants, and making the social and economic accommodations necessary for smooth integration in the short term. This has given xenophobic groups a green light to exploit the refugee situation for electoral purposes, by preying on the fears of domestic populations suffering from economic hardship or insecurity. Europe has a demographic need for young labor, and the number of refugees who have arrived is less than 1% of the European population, so with reasonable social planning, integration of new arrivals is not going to generate long term problems. On the contrary it will be an asset for an ageing continent.

FF: When you look at the political developments in Europe, the rise of populism is a clear trend. How do you think events like Brexit, the French elections, and recent inclinations toward nationalism will impact refugee and migrant policies in the EU and within individual European countries? Is migration a threat to the European project?  

JB: Clearly, the rise and growing confidence of the political right are very troubling. It is hard to see where alternative leadership is going to come from. There is a vibrant liberal left constituency in Europe too, but it lacks effective leadership at the moment. I do not think anyone can be confident about what is going to happen with the European Union. Clearly, Brexit does set a precedent which could have ripple effects. I think that a lot will depend on how sharp the exit really is. In that context, it is interesting to see the European member states so far sticking to their guns, saying to the UK, “You can't have it both ways.”

On the other hand, some recent trends are encouraging. The far right has mercifully failed to secure power in either the Dutch or the French elections, a sign that the Brexit/Trump victories may not generate the domino effect that some predicted. At the grass roots level too, many progressive initiatives are being built. In a way, city, municipal, and even regional, rather than national, entities are taking the lead toward building a more inclusive society, and I think that is likely to continue. There are many cities which have stronger pro immigrant and pro inclusion policies than their national leaderships, and constituencies within these cities are invested in them. In Berlin, Amsterdam, Stockholm, politicians, thought leaders, as well as ordinary citizens are extremely involved in daily activities of solidarity, bridge building and opportunity generation that are hopeful and generative. So even though politics at the leadership level within the EU has been problematic, there are parallel municipal initiatives that are inspiring, initiatives that are going to be forces for change moving forward. 

FF: You have been also involved with research regarding access to education within Roma communities in Europe. Do you see any similarities in the treatment of the Roma compared with incoming refugees, in terms of access to education and other social services?

JB: At superficial level, yes. These are communities that have been excluded and stigmatized in some countries. But overall, the picture for refugees is generally more positive. Whilst anti-Roma stigma and discrimination have lasted for centuries in Europe and show no signs of abating, refugee communities have generally managed, sometimes with a delay of a generation or two, to construct reasonably rewarding and secure lives for themselves and their communities. The Roma population continues to be marginalized because of a complex combination of residential, segregation, and legal identity challenges. The absence of legal identity documents (birth certificates, proof of citizenship, evidence of residential status) affects the Roma community’s ability to qualify for public housing and services (including schooling), and all the other amenities that flow from these basic social protections. 

There are certainly processes of adjustment where asylum seekers are in limbo while their claims to refugee status are being decided. This process often takes years and during this time asylum seekers may be denied basic protections and encounter severe hardships. In some countries asylum seekers have inadequate access to education. But in other situations, there is a process in place that mainstreams asylum seekers into the school system. Some of my colleagues in Amsterdam have conducted a study examining the impact of different domestic education systems on refugee and immigrant integration. They show that countries like Sweden, where there is educational integration from preschool or early childhood, the immigrant and refugee populations do better than countries like Germany or Turkey, where there is no access to care or to any form of education until primary school. In the German context, there is no system which incorporates refugees into society until they are of primary school-age, by which time language and other disadvantages militate against success in the education system. Eventually, as they progress through the education system, the immigrant and refugee children in Germany tend to be directed into a lower, non-academic educational stream. So, there are factors that discriminate against refugees too, but I would say it’s quite different from the Roma segregation which is more endemic. A very small proportion of Roma even get secondary education at all.  

FF: What do you think will be the impact of the presidency of Donald Trump on U.S. refugee policies and immigration policy?  

JB: I think that it is likely to be very negative. There are many areas where the impact is likely to be devastating as we have seen with the executive orders issued in the early months of the administration. A lot of the Trump rhetoric has focused on security and anti-Islamism, and as he puts it, “America first”. Though his attempt to block the entry of migrants from seven (and then six) predominantly Muslim countries has so far been blocked by the lower courts, with a nine-member majority conservative Supreme Court now in place, it is likely that several extremely regressive immigration and refugee policies will be upheld in some shape or form. Migrants from Arab countries are likely to experience significant discrimination both at consular offices abroad and at ports of entry in the US. Refugees, in particular refugees from Syria, are going to be affected by dramatically decreased admissions quotas, and undocumented and other immigrant populations already in the US are also going to face increasing insecurity and harassment as deportation and removal rates increase. Though the Spring 2017 federal budget does not include funding for the Southern wall, this prominent campaign demand may continue to be pursued, even though its efficacy as a migration control instrument is widely discredited. The vast majority of irregular migrants are “overstayers” not people who enter without inspection.  

FF: What do you think will be the impact of the current political environment in the U.S. and Europe?

JB: I think it's very early days. The situation in the United States and Europe is pretty fluid and it is somewhat foolhardy to predict too much about what lies ahead. Certainly, I think that there is going to be enormous financial pressure on UN bodies as a result of decreased funding. The United States has been the biggest funder of UN activities. The new U.S. Ambassador to the UN is not a believer in the UN at all, so that does not bode well. This may well have an impact on the UN’s ability to deliver on the two Global Compacts announced at the UN Summit in September 2016, the Global Compact on Refugees and the Global Compact on Migration. The former is intended to strengthen the emergency response framework that currently exists for refugees, including by increasing global responsibility sharing for refugee resettlement and for humanitarian aid and intervention for displaced populations. The Migration Compact is intended to strengthen avenues for safe, regular and legal migration in line with the mission set out in Target 10.7 of the Sustainable Development Goals. 

Despite the negative approach of the current US administration and of several key UN member states elsewhere, there is however a substantial amount of high quality advocacy and policy work being undertaken to develop useful guidelines, recommendations, and soft law instruments to strengthen the reflection process that is being undertaken. This relates both to the needs for protection of distressed migrant populations falling outside the scope of the Refugee Convention, and the need to promote greater flexibility and scope in promoting legal work related migration opportunities at both skilled and unskilled levels. Civil society activists and policy experts in government and in international bodies are working together to take advantage of this moment of collective attention to refugee and migration issues. So, despite the political challenges we face, I am not entirely pessimistic.

There will be a lot of challenges that come from this political uncertainty, so there may well be a bigger split between civil society and governmental representations in several countries. We might see cities taking the lead with mayors coming forward. I think that is going to be an important counterweight to the national level, not only in the US, but in other countries as well. Also, within the ECOWAS system in West Africa, some regional networks and constructive initiatives to protect forced migrants and strengthen migration management are being developed; the same is true in the Latin American context. Thanks to consistent work linking the Global Compact process with the development drivers focused on the Sustainable Development Goal agenda, there is real progress in strengthening the integration of constituencies that have been relatively separate. 

FF: There are many unaccompanied minors coming to Europe and the U.S. from Central America. What are some of the challenges facing children and youth "on the move"? 

JB: This challenge has been around for a long time and has been consistently neglected. As a result, very large numbers of children on the move have faced, and continue to face, human rights violations – from lack of access to basic protection on arrival, to sexual and labor exploitation, to detention.  The determination of the young migrants themselves, together with the growing strength and coordination of the advocacy community, is beginning to change things. The unprecedented attention to child migration since the Central American arrivals of 2014 has forced the pace of reform, a welcome development. Nevertheless, enormous lacunae in protection still remain.

When I first started working on this issue in the 1990s, our primary goal as advocates was to bring together the child rights and immigrant rights communities and to create common ground. We wanted a joint platform so people working on migration had some sense of the child-specific nature of the issues facing child migrants, and to ensure that people working on child protection, child welfare, and children’s rights domestically, had a sense of the key immigration component that many of their most vulnerable clients were confronting. It took a while to get these two very separate constituencies working together. We focused a lot of our protection work on the refugee convention. In the absence of legal options for migrant children the early attempt was to classify all unaccompanied migrant children as asylum seekers, and to argue that they had a legitimate claim for protection under the Refugee Convention. While this was true for many – for example children facing persecution because of their engagement with insurgent movements, children fleeing targeted retaliation because of their family’s political activities, or children fleeing forced genital cutting – it was not true for all migrant children.  Many were fleeing abuse, neglect or generalized situations of instability or scarcity.  

I think we are looking at a more complex picture now, and there's a lot of really good work in the child migration field being carried out, both by legal advocates and by social workers, teachers, psychologists, health workers amongst others. It's very inspiring to see the range of work across disciplines that has developed in a relatively short space of time. In government, there are many more experts, and a plethora of high quality guidelines (and trainings to disseminate their implications) now exist. In both the US and many European countries, there is growing expertise, and a stronger link than once existed between immigration enforcement officials and immigrant rights and social welfare advocates. In Sweden, a so-called “one stop shop” approach has been developed to great effect, so that all relevant services are gathered in one place for refugee and migrant children and teenagers, and experts go to the child rather than the other way around.

There has been enormous amount of progress, but some of the key deliverables are still a long way away. We still have not won the battle regarding detention or access to legal representation in this country. We are painfully behind on considering a child’s interests and his or her protection needs, before officials probe the child's legal status. Protection before legal classification, which is a basic child rights demand is still a distant chimera. The first question asked is about whether a child is illegal, rather than if they need a place to sleep or if they are being trafficked.

There is also the problem of age determination. How do you classify someone as child? There are many countries that regrettably still employ discredited one dimensional medical tools (e.g. dental, wrist or clavicle X-rays) instead of the multi-pronged approach needed to make a more accurate age assessment. There are also still many countries that default to a policy in which someone is considered an adult until their age is proven, rather than the other way around. These issues need attention, both in the US and in Europe. There is a vibrant advocacy community working on these issues, which is a good thing, and more attention is finally being given to the enormous hazards that child migrants encounter during their journeys, while transiting and at points of reception. But securing an arc of safety and protection is still a long way off. 

FF: In light all of these challenges, how can protection mechanisms for children and youth be improved? 

JB: I think trying to mainstream the needs of migrant children within the child protection framework is the most critical issue. Migrant children are, first and foremost, children. Where they are unaccompanied or separated from their parents, they are likely to be vulnerable to harm, in need of protection, and at risk of exploitation. Even children migrating with their parents – parents who are often overwhelmed by the trauma of exile, the challenges of relocation, the losses suffered – experience great hardship and have distinct protection needs. All these children are the responsibility of the state they are in, even if they are neither citizens nor residents.  Migration departments typically do not have the tools or the expertise to attend to these children’s needs. We see this again and again in the family detention facilities in the Southern US, in the miserable refugee camps in Greece, Jordan and Turkey, and in the dire informal settlements in Lebanon, Kenya, Uganda. Coordination and collaboration between child welfare, education, health, home affairs and migration departments is needed to address these situations adequately. Of course, this entails budgetary support, training, monitoring and other investments that will only be forthcoming if supported by the requisite political will and policy competence.  Though this is a demanding agenda, it is less onerous in the medium and long term than the cost of inaction – distressed, desperate and ill-educated young people who have no prospects of productive or regular employment or integration.

Image "Refugees" Courtesy Climattalk .in / CC BY-NC 2.0

About the Interviewee

Jacqueline Bhabha is a Professor of the Practice of Health and Human Rights at the Harvard Chan School of Public Health. She is Director of Research at the Harvard FXB Center for Health and Human Rights, the Jeremiah Smith Jr. Lecturer in Law at Harvard Law School, and an Adjunct Lecturer in Public Policy at the Harvard Kennedy School. She received a first class honors degree and a M.Sc. from Oxford University, and a J.D. from the College of Law in London.

From 1997 to 2001 she directed the Human Rights Program at the University of Chicago.  Prior to 1997, she was a practicing human rights lawyer in London and at the European Court of Human Rights in Strasbourg. She has published extensively on issues of transnational child migration, refugee protection, children’s rights and citizenship. She is the editor of Children Without A State (2011), author of Child Migration and Human Rights in a Global Age (Princeton University Press, 2014), and the editor of Human Rights and Adolescence (UPenn Press, 2014).

She serves on the board of the Scholars at Risk Network, the World Peace Foundation and the Journal of Refugee Studies.

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