ANNE WILLEM BIJLEVELD

UNHCR Geneva
Director of Bureau Europe

THE EUROPEAN MIGRATION AND REFUGEE POLICY IN THE CONTEXT OF THE WIDER, GLOBAL REFUGEE MOVEMENTS

Closing Lecture in Cicero Foundation Great Debate Seminar
"European Migration and Refugee Policy: How to Implement Amsterdam?"
PARIS, 10 - 11 June 1999

I. Introduction

 I am very grateful to the Cicero foundation for inviting me to join the distinguished list of speakers at this international seminar in the series Great Debates.

 The theme "How to Implement Amsterdam" is very timely for UNHCR. The Treaty of Amsterdam has opened up new and improved possibilities for a common European asylum and immigration policy. The treaty requires the Member States to take action within five years in a wide range of asylum and immigration-related issues as an essential part of the European "area of freedom, security and justice".

          In October 1999, EU Heads of State and of Government will meet in Tampere, Finland, to discuss and agree on the strategy for the establishment of the European "area of freedom, security and justice" provided for in Title IV of the Amsterdam Treaty.

 UNHCR hopes that the Tampere Summit will set a comprehensive, concerted and outward-looking strategy for the European Union to address refugee and migration issues, firmly rooted in a rights-based approach to asylum, and bringing the full range of political, economic, development and aid policies in a holistic perspective.

 The significance of the future EU asylum standards and policy orientations in implementation of the Amsterdam Treaty goes well beyond the European scene. What happens in Europe has an immediate effect on the rest of the world -- the "export value" of asylum developments in Europe cannot be underestimated.

          At a time when we face major challenges in the realm of refugee protection the world over, Europe, particularly the European Union, has to remain the positive example to follow in this crucial area.

 What are the challenges UNHCR and States face in the wider, global refugee movements?


II. The Wider, Global Context

 On virtually every corner of the globe, individuals and families are being forced from their homes and communities by violence, injustice and despair. War, civil conflict, persecution and gross human rights violations remain major causes of forced displacement, whether internally or into exile. Many others are forced to abandon their homes due to severe breakdown of economic and social conditions. Still others are displaced by environmental devastation beyond restoration.

 In the post-Cold War era, internal conflicts fuelled by national, ethnic and religious differences and resulting intolerance have increasingly become the main cause of coerced displacement. Today's pre-eminent example is the situation in the Balkans, where close to one million men, women and children have been driven from their homes in Kosovo. Most of the Kosovo Albanian refugees have fled to Albania and the former Yugoslav Republic of Macedonia -- two new democracies with fragile economies and social structure bearing the brunt of one of the largest refugee exodus the European continent has seen in the 20th century. Sadly, refugees from Kosovo comprise only a small portion of the 23 million people of concern to UNHCR world-wide, which include refugees, returnees and other persons displaced within their own countries: e.g. Afghanistan, Angola, Georgia, Sierra Leone, the Sudan, to name but a few.

 When seen against the background of the number of armed conflicts raging throughout the world (by some accounts some 200 recorded in 1998 alone), it may be surprising that there are in fact not more refugees than the current figures. Still, Governments in every continent are expressing alarm about the "large influxes" of refugees arriving at their borders; they are also increasingly reluctant to bear the costs of asylum. At the same time, Governments have been incapable of developing coherent and consistent strategies and policies to address the problem of coerced human displacement.

          In too many instances, UNHCR and other humanitarian organisations have been left alone to cope with the formidable demands of humanitarian action without the essential backing by political action. There have been undue expectations placed on humanitarian action "to solve" the causes of forced displacement and population movement.

Asylum and migration

 As forced displacement and the risk of further displacement have increased in the wake of national and communal tensions and conflict, new challenges have arisen both for the protection of refugees and the solution of refugee problems. These new challenges concern the growth in scale and complexity of other non-refugee migratory movements. It has become increasingly difficult to make a clear distinction between "voluntary" and "involuntary" movements, between people who are fleeing from threats to their life or liberty and those wanting to escape poverty and social injustice.

          This is not to say that the immediate causes of refugee flows are not readily identifiable; they are: serious human rights violations, persecution, violent political, ethnic or religious conflict, or international armed conflict. However, these causes often overlap with, or may themselves be provoked or aggravated by such factors as economic marginalisation and poverty, massive unemployment, environmental degradation, population pressure and poor governance.

 UNHCR fully appreciates the difficulty and complexity of the challenges facing many states in dealing with growing migration pressures in a way which upholds human rights and the institution of asylum, while addressing the legitimate concerns of States and communities which are affected by these population flows. Of course, Europe is not alone in having to confront these challenges and dilemmas. Migration is growing in volume in all major regions of the world, and Governments are taking a number of measures to ensure that their borders are not infringed: armed guards patrol frontiers; gunboats interdict undocumented travellers; some use electric fences, infrared surveillance. However, recent tendencies and current predictions with respect to economic, demographics and political pressures in the developing world permit the inference that the "pull of the north" will continue, no matter how strict and deterrent the border controls.

          According to some estimates, the migration pressures on Western Europe and North America stand at around 80 to 100 million people.

 Clearly, the management of mixed population movements, including refugees and economic migrants, demands a multi-disciplinary, integrated and coherent response, linking immigration and refugee issues with development co-operation and political action. A comprehensive asylum and migration policy, by definition, must encompass the entire continuum of forced population flows from their causes to their eventual solutions. From a protection perspective, the following elements need to be highlighted in any discussion about a comprehensive asylum and immigration policy:

          Effective protection of refugees, whether fleeing from persecution or violent conflict, is an indispensable element of any such comprehensive policy. The sine qua non of effective protection is access of persons in need of international protection to territory and to a formal procedure for the determination of refugee status. A comprehensive and integrated policy should also contain measures to deal humanely and effectively with asylum-seekers whose claims to refugee status have been properly and fairly considered and rejected. Failure to resolve this problem has led politicians and the public to lose confidence in asylum procedures and to draw the unfortunate inference that if rejection of a claim does not lead to return, there is little real difference between an asylum-seeker, a refugee and an illegal immigrant. The return of rejected asylum-seekers is therefore a concern of UNHCR, although this category of persons do not fall within the Office's mandate.


III. The European Harmonisation Process

 Over the last seven years or so, Member States of the European Union have made considerable efforts to harmonise asylum and immigration policies and practices. The Dublin Convention "determining the State responsible for examining applications for asylum lodged in one of the member States of the European Communities" was the first product of the interior and justice ministers' efforts to harmonise asylum policy. The underlying principle of the Dublin Convention is that an asylum-seeker must accept responsibility for receiving and examining the application. UNHCR's position has always been that we welcome any approach which avoids putting refugees into 'orbit' and ensures that their asylum claims are heard by least one State.

 Certainly the Dublin Convention is not without shortcomings, but the instruments adopted following the signing of Dublin in 1990 are more problematic. In this connection, three issues in particular are a source of deep concern to UNHCR:

 First, a number of measures have been taken to contain potential asylum-seekers in their countries of origin or in transit countries, irrespective of their protection needs. These measures, which could be generally characterised as "non-entree" or "non-arrival" policies, include mandatory visa requirements, carrier sanctions, the posting of immigration officers aboard to carry out pre-screening of passengers and financial assistance to third countries for reinforcement of their border controls. Undoubtedly the primary of such policies is illegal immigration, but their indiscriminate application has undoubtedly been detrimental to the protection of refugees.

 Secondly, for those who somehow manage to slip through this "cordon sanitaire," complementary arrangements have been developed, such as re-admission agreements with Central European countries; the so-called "safe first country of asylum" policy which lacks adequate criteria for measuring safety and the availability of meaningful protection; or provisions to deal with manifestly unfounded applications in a way which places unduly heavy burden of proof upon the asylum-seeker. Other deterrent measures taken at national level in certain States include the reduction of social benefits available to asylum-seekers, denial of reception facilities and the resort to detention.

 Thirdly, there has been a tendency, both at the national and EU levels, to limit the scope of the 1951 Convention through a narrow interpretation of the refugee definition set out in the 1951 Convention. Last year, only 11 per cent of asylum applicants in Europe were recognised as refugees under the definition of the 1951 Convention. Many who, in UNHCR's view, would otherwise meet the Convention criteria were nonetheless granted only a less secure form of protection than Convention status or fell into a legal void where they were, at best, exempted rather than protected from refoulement.

          It is worrisome that definitions have become attractive in Europe so long as they serve to "define away", that is to exclude, certain groups.

 The international definition of who is a refugee is well-known and well-accepted: it is found in Article 1 of the 1951 Convention. It was defined and negotiated primarily by European States and, in UNHCR's view, it is as applicable today as it was when it was first adopted almost 50 years ago. Thus:

          The 1951 Convention definition does not exclude those who fear non-state agents of persecution, as indeed recognised by State practice and jurisprudence in the great majority of States in Europe and the world over. The Convention does not exclude those whose life or liberty is at risk in a country where governmental authority has collapsed - as happened in, for example, Afghanistan, Somalia and Liberia. The Convention does not exclude victims of or those who fear gender-related persecution. The Convention does not require that asylum-seekers make a frantic, area by area search inside their own country for protection before they may seek asylum in another country - the so-called "internal flight alternative".


IV. Implementing Amsterdam: The Way Ahead

 We have seen for many years now a progressive deterioration in the quality of refugee protection, but this is not merely an European phenomenon. The fundamental principles of the 1951 Convention and other refugee instruments are being challenged by the developed and developing countries alike. However, it is particularly in Europe and other regions of the developing world that asylum policy has, in recent years, become both a victim and an instrument of border control.

 Clearly, the current European control and deterrence-driven approach is not in the interests of asylum-seekers; nor, however, does it appear to have been notably successful in resolving the migration problems of States. Restrictive measures might have deterred some fraudulent asylum applicants, but at the same time they may well, among other things, have played a significant role in fostering the emergence of a reprehensible, dangerous and highly profitable industry of trafficking in people which is posing growing threats to the very societies that restrictive immigration policies were intended to protect.

          Therefore, more restrictive policies is certainly not the way forward for Europe. The control and deterrence measures are not precision tools effectively distinguishing persons in need of international protection from those who are not, they are rather blunt instruments, catching both "unwanted" migrants and persons in search of protection.

 With the Treaty of Amsterdam, the European Union has sought to place a common asylum and immigration policy high on its agenda. The Treaty has set the stage for the development of EU-wide, legally binding instruments in relation to material and procedural aspects of asylum law.

          However, the new phase of harmonisation under the Amsterdam Treaty presents both an opportunity and a danger. An opportunity to ensure that the European Union responds in a principled and coherent manner to the challenges of forced displacement; but a danger that the European response will continue to be based on a control perspective that will make protection increasingly difficult to obtain.

 While the "communitarisation" may result in increased consistency and coherence of asylum policies and practices of Member States, there is concern that the unanimity voting procedure for the adoption of any measures during the five-year transitional period following the entry into force of the Treaty may result in Member States' settling for the lowest common denominator of refugee protection. A second concern is that, faced with the difficulties of reaching unanimous agreement, the asylum provisions of Amsterdam will be emptied of meaningful content; that they will be limited to harmonisation of procedural issues of interest to States, to the exclusion of substantive protection matters relating to the rights of the refugee. Recently, this potential loss of substance has already been in evidence in discussions of the European Commission's proposal on temporary protection.

 UNHCR would like to see the Tampere Summit stake out the political space within which a principled, rights-based approach to asylum can be anchored and the fundamental rights of refugees and asylum-seekers secured. This will require political will in face of current nationalistic and xenophobic trends. Without such a commitment, the legal development foreseen under the Amsterdam Treaty will certainly lack a proper foundation. Hopefully, the Tampere Summit will nurture the current climate of increased openness and awareness for refugee problems resulting from the Kosovo crisis.

 As stressed earlier, UNHCR relies heavily on the EU and its Member States to be in the forefront of upholding asylum in a positive way. We therefore believe that the time has come for the EU and its Member States to take a strategic approach, imaginatively and aggressively, to the development of a harmonised asylum policy that is aimed at the management of refugee claims in such a way that it guarantees every applicant access to territory and procedures, and ensures expeditious and correct decision-making. Two basic premises provide the starting point:

          Asylum must be disentangled from the broader, very politicised issue of immigration.Upholding the principle of asylum must go hand in hand with measures to address the root causes of involuntary population movements through concerted preventive action..

 In UNHCR's view, the cornerstone of a harmonised European asylum policy needs to be a common interpretation of the refugee definition contained in the 1951 Convention -- an interpretation that is responsive to all forms of persecution, irrespective of whether it arises from State or non-State agents. Undoubtedly, even when States ensure the full and inclusive application of the 1951 Convention refugee definition, not all persons with a valid claim to protection come within this definition. A complementary EU protection regime based on subsidiary forms of protection should therefore be developed in close co-operation with UNHCR.

          The rationale for complementary protection is to cover the protection needs which cannot be met by a liberal application of the 1951 Convention.

 A harmonised European asylum policy also necessarily requires common standards for asylum procedures which help ensure that those who are in need of, and should receive, protection are properly defined. A fair, effective, and accessible procedure serves a dual objective: it identifies individuals in need of protection; and it separates out those who do not need protection. That is, it does justice to individuals having protection claims, as it relieves governments and communities of concerns about "unwanted migration" since those found not to be refugees could be returned.

          Therefore, an asylum procedure which achieves expeditious and accurate identification of refugees is clearly in the interests of those who need international protection and of States.

 However, the case-by-case approach to the identification of refugees is helpful only where the overall numbers of asylum-seekers are manageable. UNHCR supports recourse to temporary protection as a practical device which allows for a principled response by States to an urgent protection needs in situations of sudden and large-scale influx of asylum-seekers, displaced by war and generalised violence. Temporary protection is therefore a measure to provide international protection when the normal procedures for determining who needs protection cannot cope, due to the mass influx. In that sense it complements the protection regime under the 1951 Convention by ensuring that its fundamental purposes are respected even when its application is temporarily suspended for a particular group of arrivals.

          The practice of temporary protection is not a matter of pure political discretion; it is not a panacea, nor is it an alternative or subsidiary form of protection, the use of which relieves states from their international obligations to refugees. Temporary protection should be modelled on sound principles and well-defined criteria that ensure it does not become a second-best alternative to asylum. when it leaves people in limbo, or when it denies generally accepted standards of treatment, or when its termination results in the forcible return of people to situations where their safety is not guaranteed, temporary protection does not conform with States' human rights obligations.

 I suggested earlier that an European asylum policy should go hand in hand with a preventive policy to address the human rights violations and other causes generating refugee flight. The European asylum -- or, for the matter, migration -- problem cannot be solved in Europe alone. It is clearly in the interest of EU States to situate their asylum and migration policy within a broader approach to address political, human rights and developmental issues in countries and regions of origin.

 In this connection, the establishment of the EU High Level Working Group on Asylum and Migration is an important step in the direction of a more holistic approach to the problem of displacement. UNHCR sees the work of the Group as to move the Debate out of a framework premised on one of restrictiveness and deterrence into one which engages more constructive foreign policy initiatives.

 To conclude: There are undoubtedly major challenges in the realm of refugee protection in Europe and the world over. We see a common thread, which is the tendency to heavily rely on control and deterrence measures. This tendency poses a serious risk to the basic rights enshrined in refugee law that have been painfully constructed over the last 50 years. European States have traditionally been in the forefront of this construction, and they have to remain as such.

 We must at all costs preserve the human rights foundations for the protection of refugees in Europe -- if that fails, we have little expectations, if any, of success in other regions of the world. An effective "humanitarian role" of Europe can only be ensured if there is a determined European political will to give real meaning to the agreed principles of refugee law.