Anna Rowlands

This summer Europe has been shaken to the core, caught between an open hearted response to an image of a tiny body washed up on a shoreline, and complicated cycles of fear about the arrival of strangers.

Meanwhile, a continuous stream of humanity has clambered out of tiny dinghies to begin arduous treks through the heart of the continent: difficult pilgrimages in search of order, peace, freedom and economic survival.

Finally Europe is being forced to confront the reality that ours is a generation that will be marked by the movement of displaced peoples.

In 2015 alone, over 700,000 migrants have arrived in Europe by sea. More than 3,000 have died in the waters of the Mediterranean. Over 500,000 of these arrivals have claimed asylum in Europe. Hungary has received 665 asylum applications per 100,000, Germany has taken 190 (and rising fast) and the UK so far just 23 per 100,000.

The majority of arriving migrants are Syrian, Afghan, Kosovan, Eritrean, Somalian, Albanian, Pakistani, Ukrainian, Serbian, Iraqi and Nigerian.

This summer’s mixed flow of arrivals represent a tiny fraction of the world’s displaced population, which stands at around 51 million.

In reality, a small proportion of those half a million plus applying for asylum are likely to be granted refugee status under the narrow terms of the 1951 Convention and 1967 Protocol. However, given that figures for removals and returns of those refused asylum remains low, what is most likely to happen is that very large numbers will remain in Europe but will subsist in a state of legal, political and economic limbo, surviving in the shadows on European territory but without meaningful political, economic or social membership of the European community.

This crisis is both old and new: intense waves of migration have been a hallmark of European history; however, we are now witnessing what appears to be a significant development in the patterns of migration towards Europe. Such shifts can be characterised as threefold: a shift in the pace, destination and complexity of motivations for migration, a focusing of migratory flows on the Central Mediterranean routes – particularly sea routes from politically destabilised North Africa – and a steady mixed flow of environmental, political, religious as well as economic migrants. This is expected to be but the beginning of a trend that will come to mark our times.

What has also shifted over the last two decades is the story that the European nation-state has told itself about its relation to the migrant who seeks entry. To grasp the significance of this shift, we might briefly take the long view.

Asylum and protection

Asylum means “what cannot be seized.” It should be apparent to us from the outset that the phrase carries a transcendent meaning, the idea of a protected entity. In practical legal terms, it refers to a right to reside. In the early legal theory of Protestant Hugo Grotius and Catholic Francisco Suarez, the right was both a duty of the state and a natural right of the individual. The state granted asylum on the basis of an international humanitarian duty.

Legal scholars have long claimed that the normative character of this international duty is directly connected to the enduring character of asylum provision across time, religion and culture.

The Christian theological roots of contemporary European asylum law are core to this case. The faith-based origins of asylum are traced to the notion of territorial asylum found in Judaism’s temple and later city-based practice of asylum: a tradition for the protection of the innocent from harm. This Jewish teaching is rooted in both a prohibition against harm and an injunction to love the stranger as yourself. Christianity inherited this understanding and intensified the link between the care offered to those in distress and salvation. Both traditions teach that the stranger, exile and person in distress carries to the settled community a form of – often difficult to decipher and troubling – divine message.

As the Church spread through mission, so a territorialised understanding of asylum travelled with it. Theodosian and Justinian codexes formalised the Church’s role as intercessor and territorial protector for those in distress. This tradition, which reached its high point in the twelfth century, is then adopted by the state itself, but clearly on parallel grounds to those previously used by the Church.

The most significant normative shift in the modern practice of asylum happens in the wake of the religious wars and the French Revolution, with protection for freedom of thought and a focus on the politically persecuted. The new religious and political division of Europe produced the modern religious and political refugee. Newly founded Republics developed a new language and self-understanding for asylum: predicated on values of liberty and equality, to fail to grant asylum when requested would be contradict the founding visions of the liberal state itself (see Article 120 of the French Constitution, 1793). Legal scholar Maria Teresa Gil Bazo writes:

“It becomes increasingly clear that asylum aims to protect the higher values on which the state itself is founded: national liberation, justice, democracy and human rights.”

In this sense, we can say that asylum norms have never just been about the protection of individuals. These norms concern an animating vision of the world incarnated through communities of practice: Temple, Church and later the liberal State. These norms express the theodic vision of communities who, in the face of human suffering, recalled their commitments to membership of a prior universal human family that precedes, transcends and yet can be instantiated within the membership of states.

Although asylum had become secularised, it nonetheless continued to function as part of a creation story: the creation story of the modern state. It is therefore not far-fetched to claim that if territorial asylum is in crisis, then our very idea of what it means to inhabit European ecclesial and secular political communities – and most especially liberal democratic nation states – is also under stress. For both Churches and states were the interconnected and storied institutions which created and sustained norms of refuge for the displaced.

Randall Hansen and Charles Taylor both suggest that, in relation to the admission of migrants, European states are caught in an aporia between the principle of liberality of provision (a right to have a claim heard, legal support in some form, housing and some basic welfare provision) and a political desire to limit the possibilities of claiming such provision. There is thus a contradiction at the heart of current European state practice between the abstract rhetoric of inclusion and a concrete standing temptation to exclude, using extreme forms of coercion in the case of the asylum seeker. This tension is most visible in the political rhetoric of hospitality that is then matched by increasingly securitized and privative public immigration policies, which are marshalled towards territorial exclusion and expulsion.

The laws of hospitality

Catholic faith-based organizations (FBO) have expressed particular concern about current European trends towards the increased use of immigration detention for administrative management of migrant flows; the use of legislative power to create new forms of welfare and legal privation, such that both systems of welfare and law are marshalled less towards positive justice and more towards the use of forms of destitution to maximise levels of deterrence and expulsion; and, finally, the displacement by sovereign states of their migration control functions onto the high seas, into detention centres and off-shore handling facilities.

Many of these facilities – born from the failure of immigration policies – are operated by private profit-making agencies: immigration control is an emerging and highly profitable market. This trend simultaneously distances the state from direct responsibility for the moral conduct of some of the state’s riskiest moral enterprises – coercive processes enacted upon non-citizens – and introduces a new set of moral actors who have been the subjects of little ethical reflection.

It is also true that, while the state draws more distant and the private sector more proximate, the intermediate organisations of civil society – including the Churches – find it harder to fulfil their own socialisation role in relation to arriving migrants.

What seems clear to both Catholic FBOs and secular commentators alike is the absence of a substantive structuring notion of the good – applicable to state and private actors – that we wish a European migration policy to embody. Despite public speeches given by leaders appealing to ideas of dignity or compassion in broad terms, the drive of national and regional policy manifests the absence of an animating coordinated and substantive vision of the good.

Here an important moral theological question arises: if we cannot (or do not try to) agree on what we are for – on a substantive account of the moral good we aim for in the case of migration provision – are we not pushed endlessly towards a negative cycle of reaction through which we find unity only in what we are against, and make public policy to suit? The absence of an attempt towards the common good is never theologically neutral: in the absence of an orientation towards the good, evil takes hold.

Is this partly how we can make theological sense of the cycles of fear that drive us towards building higher walls, and the exponential increase in the use of detention?

Here a further question arises: does the absence of a substantive account of the good produce not only a drive towards negative enforcement oriented practices but also the emergence of distorted modalities of good and evil, which refuse to be suppressed within public discourse? This is to ask whether despite – or precisely, because of – the absence of substantive goods in public policy, talk of good and evil nonetheless irrepressibly reinvents itself, but shorn of its ethical groundings?

It is not that we lack any language of good and evil in public debate, but that the language we have adopted has become shorn of its meaningful relation to the categories of love and justice, becoming more Manichean than Christian in form. The absolute distinction becomes between good and bad kinds of migrants, between poor victims and vicious smugglers, good European intentions and illegal human others.

One critical example of this can be seen in the suggestion muted by Australian and British governments that less is owed to the forced migrant who displays both independence and tenacity and travels independently to reach safety, rather than the migrant who remains internally displaced or settled in refugee camps: that unauthorised migrants boarding boats are less morally worthy, less “good” than those in camps.

I want to suggest that such an understanding of the moral worth of migrants exists in some tension with the Catholic moral tradition. I have already noted above the recognition of a right to flee and to seek sanctuary in the face of violence and persecution. In his sixteenth-century work on justice and rights, Francisco di Vitoria addresses directly a right to travel. He roots a right to travel in what he describes as the first state of humankind: a natural right to partnership and communication (ius communicationis). The development of political bordered communities is meant to facilitate not frustrate this essential social and rational characteristic of the human person.

All laws of hospitality and protection stem from this basic ius communicationis: from the sociality, interdependence and rationality of the human person. Thus Vitoria imagines a political philosophy in which there is a natural community of human beings across which minimum standards of justice are binding, and in which the individual maintains a radical freedom to seek the good.

On this foundation, Vitoria builds an account of human rights rooted in “welfare” or “passive” rights – that is, benefits or goods due to the human person qua human person – and active liberties. A “welfare” or “passive” right constitutes a right to live free from persecution, as the beneficiary of the basic goods necessary to forge a livelihood and to raise a family: these are minimum conditions we claim from political community. These benefits have an economic, ecological as well as political dimension.

But we also possess “active” rights to liberty, rooted in the power to act and the dominium we exercise. Vitoria roots this in what he sees as a Thomist understanding of the imago dei: made in the image of God, we are equipped to know God, we are equipped with a capacity to act freely in the world, a capacity for rationality and self-mastery, and a capacity to exercise dominium. Thus Vitoria imagines a system of benefits and liberties within a system of mutual, reciprocal obligations between migrant and “host.”

This view does not fit easily with either open or closed borders views. Vitoria reinforces the idea of sovereignty, but in service to a particular vision of the human person. Such a vision from Catholic jurisprudence should at least trouble any suggestion of an a priori lesser moral duty towards the migrant who boards a boat in pursuit of the goods rendered by membership of a functioning political community.

In this light, it is also striking that the mass civil disobedience by migrants in the summer of 2015 has been targeted at the operating norms regulating migrants’ access to membership rather than against the substantial legal frameworks themselves. Migrants have not refused to claim asylum: rather, they have refused to claim asylum in the first country of entry; they have refused to be fingerprinted and documented by nations they do not wish to remain in; they have refused to accept the call to remain in countries where they determine no real opportunities for livelihood and citizenship exist and have risked their lives to access both.

Migrants – whether refugees or so called economic migrants – report that their movements are driven by the desire to settle where they have language skills, established family or cultural connections, relevant economic skills and opportunities for education and self-development.

Such motivations mirror the vision of the good and of human sociality held by the Catholic tradition. In natural law terms, it makes sense that migrants seek these goods and that political communities have a duty to respond with urgency and efficiency to such requests. In turn, these orientations have been visible in the advocacy priorities developed by Catholic NGOs, discerned through responsiveness to Catholic tradition and migrant experience.

Both the wider tradition and the work of Catholic agencies communicate the expectation that both substantive law and the operational frameworks that guide access to law work with a “thick” conception of the human person as possessor of both passive or welfare rights and liberties to act and to determine their lives in community.

The role of the Church

So, how might the Churches be part of a process of reimagining the institution of asylum as refuge for those in distress in twenty-first century Europe? In his Lampedusa sermon and in Laudato Si’, Pope Francis offered a three part theological response to guide this reflection:

• There is recognition of the disorientation of European culture in relation to the goods sought by those on the move. He identifies this disorientation as an expression of social sin: a sin typically hidden but made visible to us in the experiences of those on the move.
• He emphasises that while there is a crisis of political will, a political crisis in the case of migrant response also always reveals a crisis of civil society: for it is civil society which is responsible for the generation and sustaining of practices of compassion. Are we willing to confront this dual crisis which has political and spiritual components?
• Finally, he reminds us that the task of accompaniment is core to the intellectual theological and pastoral mission of the Church: but this will require a willingness not just to “be with” but to suffer with others. This is disturbing news for Europeans.

While the Church has good reason to support the legal structures that recognise refugee need, this perhaps ought not to limit our imaginations and our memories about what protection and accompaniment of the stranger on the move might mean. Papal encyclicals point rightly to the multifaceted causes of displacement – environmental, economic and political – and the need for systems for the management of migrant flows which recognise this humanitarian reality and respond with political and economic creativity.

We do not have legal provision to match this need. In the absence of political and legal mechanisms, the stories of migrants on the move indicate that the structures most responsive to their immediate needs are perversely the informal markets that facilitate – and often, although not always, exploit – their onward movement, the old structures of faith (both through relief, aid and accompaniment and through forms of Islamic finance, for instance) and spontaneous and more organised forms of civil solidarity.

The first task of the Church is to incarnate its own story of creation and redemption in its accompaniment of migrants. We should expect that this will draw us into forms of conflictual solidarity: being the Church properly so will lead us to confrontations with power.

But is it also possible to imagine that through demonstrating a different logic, performing another story that we stimulate a different kind of political imagination? The history of asylum shows us that legal renewal can spring from grounding in a wider network of social and ecclesial action, from social relations whose raison d’etre is rooted in deeper structures of solidarity and communication.

But this will be a challenge, for the Church itself has a mixed history with regards migration: it has caused displacement as much as cared for the displaced. And so the necessary ecclesial response to the current crisis will require the Church to lead a process of ecclesial as much as a political conversion.

Anna Rowlands is Deputy Director of the Centre for Catholic Studies at the University of Durham. http://www.abc.net.au/religion/articles/2015/11/10/4348668.htm