[Editor’s Note: The following post is by Margaret A. Moody, who practices immigration and international law. In 2015, she served as a full-time consultant to the UN High Commissioner for Refugees (UNHCR) Northern Europe, in Stockholm, Sweden. In an earlier post on her own site, Ms. Moody explained how and why the ostensibly temporary measures contained in President Trump's (stayed) January 27 immigration Executive Order 13769 would likely end up being permanent. Because the anticipated EO that will supersede EO 13769 might incorporate the latter's reliance on the list of seven predominantly Muslim countries (also discussed in a recent DoL post by Diane Klein), Ms. Moody's analysis of EO 13769 will remain highly relevant. As a lawyer in private practice, Ms. Moody does not speak for UNHCR.]
Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is
When I arrived in Stockholm, Sweden, in the fall of 2013, the grumbling about refugees was just beginning.
By the time I left Sweden at the end of 2015, expertly printed swastika decals were a common sight in our high-rent neighborhood north of Stockholm and in the city’s tony shopping district of Östermalm. Stickers reading “Nordisk Ungdom—2000-talets nationalister” (“Nordic Youth—21st Century nationalists”) dotted lamp posts and crossing signal buttons across the city.
Shortly after I returned to the U.S., an estimated 100 neo-Nazis and soccer hooligans descended upon Stockholm’s Central Station, its answer to Grand Central Station. Yielding Billy clubs, they attacked Afghan refugee boys known to hang out there. The police were outnumbered.
Still, many Swedes and other Europeans recognize the humanitarian issues at stake. But alarmist rhetoric is common, and new laws make it harder for asylum-seekers to be reunited with family.
Europe isn’t sending America her refugees. She’s sending America her refugee scare.
The anti-refugee panic has crossed the Atlantic and has now settled in America. Menacing portraits of refugees in Europe rationalize radical changes in U.S. immigration and visa law.
First, little-understood changes to the U.S.’s Visa Waiver Program were rushed through as an eleventh-hour rider to the Omnibus Spending Act in the final days of 2015. Now those revisions have been employed to defend sweeping changes introduced by the January 27, 2017, executive order.
The Visa Waiver Program allows qualified citizens of Europe and a few other countries to travel visa-free to the U.S. for tourism or certain business purposes. This is how a Frenchman who wants to see Manhattan or the Grand Canyon comes to the U.S. The 2015 changes mean that any citizen of a European country who is also a citizen of a designated country—currently Iran, Syria, Iraq, Yemen, Sudan, Somalia, and Libya—has to apply for a visa at a U.S. consulate rather than traveling on the Visa Waiver Program like he used to.
To be clear, citizens of designated countries who have no European citizenship have always had to apply for a visa. They’ve never been eligible for the Visa Waiver Program. What the changes did was to impose a visa requirement on, for example, Swedish citizens who are also Iranian citizens. This means that an Iranian-born Swede—imagine a businessman or an academic (and there are many)—who had previously traveled to the U.S. visa-free on his Swedish passport must now apply for a visa on the sole ground of original Iranian nationality.
The chaos of the current refugee crisis obscures the well-established European populations of Middle Eastern origin. Hundreds of thousands of Swedes, Germans, French, and British are of Iranian, Iraqi, and Syrian descent. The significant Iranian-European population dates to the 1979 Revolution, when there was a mass exodus from Iran. Many people of Syrian origin have lived in Europe for forty years, and Iraqis for nearly as long. These longtime Europeans tend to be well integrated. They are hairdressers, school teachers, government employees, tailors, business people, artists, academics, and authors. And many have siblings or cousins in the U.S., whom they visit regularly.
The Visa Waiver Program changes of 2015 never made any sense. They were based on misunderstandings of the demographics of Middle Eastern-origin populations in Europe, the incompetent misapplication of foreign countries’ citizenship laws, and a disregard for international law.
Worse, the 2015 changes are now pointed to to justify the recent executive order banning refugees and virtually all nationals from seven designated countries from entering the U.S. or receiving any immigration benefits.
To understand the wrongheadedness of these changes, we need to understand the facts about Europe’s refugee crisis, terrorism in Europe, and how refugees get European citizenship.
The recent major terror attacks in Europe have not been carried out by refugees. And they haven’t been carried out by nationals of the seven designated countries, either. The Paris attackers were mostly French and Belgian citizens of Moroccan extraction, though the collaboration of one Syrian is suspected. Even assuming a Syrian participated, it appears he did not obtain refugee status. The attacks in Nice and Berlin were both perpetrated by Tunisian nationals.
Sound familiar? The flagrant mismatch between the banned nationalities and the nationalities of the perpetrators of major terrorist attacks in the U.S. has been widely noted. There’s a similar mismatch to the nationalities of the perpetrators of the recent atrocities in Europe.
To be sure, Europe’s recent refugee crisis has been chaotic. The sheer numbers of asylum-seekers have overwhelmed government and civil society. Recent refugees from the Middle East and Africa have reached Europe by land or by sea, generally not at ports of entry. Yet even under those chaotic conditions, terrorism attacks by refugees in Europe have been extraordinarily rare. (And no, rioting—violent and criminal—in Europe’s ghettos is not the same as terrorism.)
The situation in Europe is a far cry from the organized, deliberate refugee resettlement in the U.S., overseen by the Department of State and numerous other agencies.
Then there’s the other fear behind the European refugee panic. What if a would-be terrorist who slipped into Europe in the chaos of the migration crisis—the proverbial bad apple—hops on a plane to the U.S. from Europe? That’s implausible.
No major refugee-receiving European country has citizenship laws so loose that a refugee who has come in the turmoil of the crisis could have obtained citizenship yet—or anytime in the near future. No European citizenship means no European passport and no visa-free travel. For a refugee to get European citizenship, first he must get refugee status, which takes months or years. Then he must fulfill that specific European country’s naturalization requirements, including five to eight years of permanent residency, plus a laundry list of other criteria. Those normally include a high degree of language proficiency and no criminal record.
By the time a recent refugee to any European country manages to get the citizenship of a European country, he will have had a long period of stable residence in Europe. European police and intelligence agencies will have had ample opportunity to do background checks. And even so, as any knowledgeable U.S. Department of State or Department of Homeland Security official could attest, the U.S. can easily prevent air travel of individuals whose particular life histories disqualify them from travel to the U.S.
Conflating European citizens with the governments they fled before finding safe harbor in Europe is to turn international human rights law on its head. The smear that they pose a security threat to America is absurd.
The assessment of whether an alien is admissible to the United States must be done on an individualized basis, as required by law. Broad assertions that all refugees or all nationals of certain countries pose national security threats are ludicrous. Serious counter-terrorism experts understand this.