Echoes of the Past in Europe’s Two-Tier Approach to Refugees

They are the lucky ones. A group of female journalists, legislators and judges from Afghanistan who have found a temporary safe haven in Greece and await visas to resettle in Europe. These women were the focus of a recent New York Times piece highlighting Europe’s two-tier system for people seeking asylum. European Union nations strongly prefer admitting educated and skilled professionals, many of whom already have the connections to help them legally come to Europe. Yet a safe and legal means to asylum is not an option for the thousands who undertake dangerous and expensive journeys to arrive at Europe’s borders.

The European Union’s two-tier approach to asylum seekers has echoes of the U.S. government’s approach to German Jews seeking immigration visas during the Nazi years. The State Department had strict rules for processing visa applications under the Immigration Act of 1924 which included a quota system for permanent immigrants.

Many applicants were rejected on the basis that they were seen as ‘likely to become a public charge’. Bat-Ami Zucker, in her 2001 book, In Search of Refuge: Jews and US Consuls in Nazi Germany 1933–1941, documents how the public charge clause was the main instrument for restricting immigration into the United States during this time period.

Denying visas for economic reasons ensured that the flow of immigration remained well below the annual quota of 25 957 German nationals from 1933 to 1944. 1939 was the only year in which the number of visas issued to Germans reached the allowed quota. An American consular official with antisemitic or xenophobic views could use his discretion to impose the strictest possible application of visa requirements.

More than 80 years ago my great aunt Meta travelled from Frankfurt to Stuttgart for her appointment to obtain a visa to emigrate from Germany to the United States. Meta was an unmarried woman who worked as a maid. She lived with my father’s family and hoped to start a new life in America with them. Her younger brother Gustav was my grandfather.

Gustav was arrested in late 1937 on his return to Germany after smuggling his money into Switzerland. When he was released from prison in June 1938, he did not risk a return to Frankfurt, but fled directly to the United States. Once in New York City, he would help arrange for my grandmother, Meta, and the two children (my father and his sister) to emigrate.

By the end of 1938, after the Night of Broken Glass, my grandmother was still in Frankfurt waiting for the chance to escape with her children and sister-in-law. For days after the pogrom, the consular office in Stuttgart was inundated with thousands of desperate Jews. “Each day a larger and larger crowd has besieged the Consulate, filling all the rooms and overflowing into the corridors of a building six stories high,” wrote Consul General Samuel Honaker in a 15 November 1938 letter to Assistant Secretary of State George Messersmith.

When my grandmother and Meta finally had their visa appointment in Stuttgart, my grandmother had alles in Ordnung (everything in order) and easily passed the physical examination and interview with the consular staff. With a husband already in New York and sponsorship by close relatives, my Nana Irma and her two children were strong candidates for immigration under the quota system.

Meta’s visa application was denied. My aunt recalls that Meta “was so shy that she was completely paralyzed…and she could not speak”. A timid woman in her mid-forties without a husband who couldn’t properly speak or answer questions must have appeared to the Americans as someone ‘likely to become a public charge’. Although Meta’s brother had already been legally admitted to the U.S., the authorities did not apply the flexibility allowed under the rules for immediate family members.

In October 1939 my grandmother finally set sail for New York with her children. The family would begin their new life in America without Meta.

Meta was left in Frankfurt and eventually relocated to a Judenhaus, the Nazi term for a ghetto house. Jews were assigned to live in these houses in cramped conditions throughout the territory of the Third Reich. The relocations were both a prelude to the Final Solution and a means of addressing the housing shortages for racially pure Germans caused by bombing during the war. The Gestapo had free license to control and terrorize the Judenhaus occupants.

Located at Ostendstraße 12 in Frankfurt, the Judenhaus would be Meta’s last place of residence before she was deported in May 1942. Her story ends with the vaguest of details. She was most likely deported to the Izbica ghetto in Eastern Poland which was a transfer point to the Sobibor and Belzec concentration camps.

Despite the extreme nature of the persecution faced by Jews and other enemies of the Third Reich, they were not recognized as refugees by the Roosevelt administration, at least not for purposes of immigration. The State Department’s instructions to consular officials prohibited ‘special treatment for the class of aliens known as refugees’. Victims of political or religious persecution were to be treated the same as all other applicants for immigration.

This refusal to treat victims of persecution as refugees reduced the odds of survival for Meta and thousands of others.

A sea change in international and human rights law occurred in the aftermath of World War Two. The 1951 Geneva Refugee Convention (GRC) outlines criteria for refugee status and affirms the right to protection from political, racial, religious and other types of persecution. The 1967 Protocol expands the GRC and other regional agreements further define and extend refugee rights. While these legal changes did not guarantee asylum for the 1.3 million refugees who came to Europe in 2015, governments had an obligation to act in accordance with their protected status.

As the legal status of refugees has evolved, so too have our expectations for treatment of refugees. The legal scholar Dana Schmalz argues in a 2020 report that the refugee concept “represents the normative idea that in exceptional cases, the state has an obligation towards the stranger at its border.” This normative idea is distinct from the legal definition of a refugee. Yet the state still retains sovereign authority to implement refugee law based on its unilateral discretion. The legitimacy of an individual’s claim for asylum will always be subject to the discretion of government decision makers.

Meta was not a stranger at the border of another land, but an internally displaced woman who was persecuted because of her religion. She had a moral claim to seek refuge in America and join her brother in New York. Today the term ‘refugee’ can carry negative connotations, caught up as it is in the politics of migration and immigration. Using labels to discuss those who have fled war-torn regions can perpetuate negative stereotypes. But the legal and normative advances in refugee rights since World War Two remain important for addressing the claims of asylum seekers.

Fifteen European nations have now agreed to take in 40 000 Afghans in addition to those who have already arrived. Granting access to professionals and skilled laborers makes sense, but so does following a humanitarian approach for the stranger at the border who arrives with nothing but hope for a better future.

References:

Schmalz, Dana. “A Counterbalancing Exception: The Refugee Concept as a Normative Idea.” Inter Gentes, Inter Gentes, 25 May 2020, https://intergentes.com/a-counterbalancing-exception-the-refugee-concept-as-a-normative-idea/#.

Zucker, Bat-Ami. In Search of Refuge: Jews and US Consuls in Nazi Germany, 1933-1941. Vallentine Mitchell, 2001.