Opening or Closing the Frontiers: What is the Impact of the New Anti-Terrorism Measures on the Refugee Policy of the Member States?

Paris, 15 February 2002

Lecture in the Cicero Foundation Great Debate seminar 'Justice and Home Affairs - Toward the Full Implementation of the Amsterdam Treaty'

First of all I would like to thank the Cicero Foundation for the invitation to participate in this seminar on Justice and Home Affairs in the framework of the Amsterdam Treaty. It is actually the second time that I am invited to this international seminar for experts. Last year I was speaking on behalf of a very efficient network of European NGOs called ECRE, the European Council on Refugees and Exiles. I am now working as a consultant and one of my missions is to work on behalf of UNHCR as a judge in the French Board of Appeal for Refugees. But I want to draw your attention to the fact that I am not speaking on behalf of UNHCR today even though I will sometimes quote their positions as well as the positions of other organisations like ECRE. My intervention will focus on a critical analysis of the developments of the refugee policy in the European Union in the present context mainly based on my previous experience as a European officer in a French refugee assisting NGO.

Last year the subject I had to comment was much more protection oriented in its title than the one I have to present today. Whereas last year I had to speak about "How to Safeguard Refugee Protection in the Process of European Harmonisation?", the subject today is entitled "Opening or Closing the Frontiers: What is the Impact of the New Anti-Terrorism Measures on the Refugee Policy of the Members States?". And this is my first remark. While there is definitely a very legitimate concern about terrorism and an urgent need to act at the European and international level in this field, there is no obvious linkage between terrorism and refugees. As UNHCR says the only interference we could see is that the internationally agreed criteria for characterizing certain acts as "terrorist offences" may be relevant to the interpretation and application of the so-called "exclusion clauses" of the refugee definition of the 1951 Convention relating to Refugees. These clauses are contained in article 1F of the 1951 Convention, which stipulates that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations". From this wording, it is apparent that a proper application of those exclusion clauses would and should make it impossible for terrorists to benefit from the protection of the 1951 Convention. This principle is acknowledged by the European Commission in a paper about the balance between improving security and protecting refugees rights. However if a linkage is made between the European Framework decision on terrorism and the exclusion clauses of the 1951 Convention, UNHCR insists on the fact that an examination of the individual circumstances of each case as well as the gravity of the excludable act would still be necessary.

That demonstrates that we have to be vigilant about certain provisions included in the new measures to combat terrorism because they might indeed affect refugees and endanger the right of asylum. This is the case in the framework decision on the European arrest warrant. As the 1951 Convention in no way extends immunity from prosecution to refugees who have committed criminal offences, the text would apply to asylum seekers and refugees in one member state who may be accused of having committed crimes in another member state as it would to other persons. For example, a refugee could be transferred from one member state (the one which has recognised the person as refugee) to another member state for prosecution. UNHCR notes that in this case suitable measures should be put in place to ensure that refugees are properly identified as such, that their protected status would be retained (with the exception of art.33(2) Geneva Convention cases) in the member state responsible for their protection and that return arrangements to the member state where they are recognised are in place after prosecution or, at the very least, after serving the sentence. Similarly, in the case of an asylum seeker, if an asylum seeker is transferred to another member state under the transfer scheme, the asylum procedure in the first state of asylum should be suspended and after the resolution of the prosecution the asylum seeker should be returned to the State responsible for determining the asylum claim and consideration of the case resumed to its final conclusion. This means that the special nature of the situation of asylum seekers and refugees should be reflected in the text on the European arrest warrant.

The will to act quickly and efficiently in the field of terrorism has become a top priority on the European agenda before the definition of a protection system for refugees in the European Union (EU). This is illustrated by the programme of the present Spanish Presidency. We can indeed share ECRE's concerns that hurried government responses to address national security issues may result in misplaced restrictive proposals which undermine refugee protection. In addition, the new context will certainly not help to promote policies to fight against xenophobia from which refugees, among other foreigners, are victims especially in certain EU member states.

But I would say as a general remark that the spirit of suspicion towards asylum seekers and refugees is not new in the EU. I will therefore not limit my presentation to the developments in the refugee field since the terrorist attacks nor to the question of frontiers but I will try to comment upon all the recent developments in the EU in the field of asylum.

The Amsterdam Treaty, while transferring the issues relating to asylum and immigration to the first pillar (community competences) has created an imperative for member states to develop a series of Community instruments within a given timeframe which will govern the lives of many millions of migrants, asylum seekers and refugees. The European Commission has by now drafted proposals in all the areas concerned (determination of the State responsible for the treatment of an asylum request (Dublin II); asylum procedures; reception conditions; definition of a refugee…).

One shortcoming is that the EU legislation is often adopted in a spirit of the "lowest common denominator" reinforced by the unanimity voting procedure within the Council. We have observed recently that important principles agreed upon by members states at the Tampere Summit in October 1999 could be further watered down in the framework of the Justice and Home Affairs Councils and even during European Summits like the recent one which took place in Laeken at the end of the Belgian Presidency.

The Tampere Summit gave a very good political impetus for the development of a European asylum system which would safeguard refugee protection. The main Tampere commitments were:

The recent Laeken Summit however, while reaffirming the European Council's commitments "to the policy guidelines and objectives defined at Tampere", has put an emphasis on measures to ensure more effective control of external borders. And the fight against illegal immigration is not counter-balanced by a firm commitment to guaranteeing access to and provision of international protection to those in need. Regrettably, as ECRE notes, this exemplifies a trend witnessed in the asylum work of the EU whereby deterrence rather than protection seems to be the key priority of the majority of member states. One worrying provision of the Laeken Conclusions is the reference made in § 39 to a common policy on asylum and immigration that "maintains the necessary balance between protection of refugees according to the 1951 Refugee Convention, the legitimate aspiration to a better life and the reception capacities of the Union and its member states". It is important to recall that the reason refugees seek access to the EU member states is because they are in need of protection due to a well-founded fear of persecution.

However when an asylum seeker tries to escape persecution and reach Europe, he or she encounters many obstacles and these obstacles risk to be even higher in the present security oriented context.

Firstly, the asylum seeker encounters obstacles in order to get access to the EU territory.

This is the whole question of frontiers. Even before the terrorist attacks, there have been repeated and various attempts to prevent refugees from leaving their place of persecution and to prevent them from accessing protection in Europe, through visa regimes, carriers' sanctions and so-called "safe third country" practices. There is no point to the creation of a model asylum system in Europe if refugees are simply to be denied the opportunity to access it.

There are many elements in a strategy of border controls and the Laeken Conclusions reaffirm the need to reinforce them in order to fight against terrorism, illegal migration and human trafficking. The objectives of combating trafficking and smuggling are essential. As ECRE notes, they should however be secondary to the States' commitment to upholding human rights and the Refugee Convention. Measures to control immigration must not interfere with the individual's right to asylum. Those measures have led to the containment of potential refugees inside the country where they are persecuted and have made it impossible or extremely difficult for refugees and other persons in need of protection to apply for asylum. The growth in trafficking of people is a direct result of barriers. A report published by UNHCR underlines that "the main nationalities that are being smuggled and trafficked to Europe in order to claim asylum are those very same nationalities that are recognised as refugees by European countries themselves". It is very important that any measure taken to combat irregular migration and trafficking makes a clear distinction between punishing the traffickers and protecting the victims (often refugees). Article 31 of the Geneva Convention was drafted in recognition that the refugees who escaped Nazi persecution had relied on traffickers and illegal routes. To enter illegally implies nothing about the credibility of an individual's claim to need asylum and efforts to assist asylum seekers entering illegally need to coexist with efforts to control migrant trafficking. In the two texts initiated by the French Presidency on combating human smuggling (one on defining the offence and one on setting penalties) on which a political agreement was reached in May 2001, UNHCR, ECRE and other NGOs had argued for a clause that would exempt from persecution NGOs, relatives and others who offer advice and assistance for humanitarian reasons rather than for profit. This "humanitarian clause" unfortunately met strong resistance and was only agreed once it had been made optional.

The tendency is also to "export" border controls with the increased recourse to immigration officers in the countries of origin and to "privatise" migration controls by transferring the responsibility to private transport companies. Indeed the directive on carriers sanctions was formally adopted in June 2001. The prospect of fines of at least 3000 euros introduced in this directive will have the intended effect of making airlines and shipping companies more vigilant for stowaways and passengers without proper documents but it will also make them less inclined to report their presence to the authorities. As ECRE notes, the directive offers only the weakest of safeguards for refugee protection in stating that action taken under the directive should be "without prejudice to member state's obligations in cases where a third country national seek international protection". This is only little consolation to a survivor of torture who has been refused permission to board a flight because he is travelling on a forged passport. Unless he sets foot on the EU soil, he cannot invoke the right under art 31 of the Refugee Convention not to be penalised for illegal entry.

The fight against human trafficking is also essential but our concern is that the victims of traffickers can include some persons in most need of international protection. Political agreement has been reached in September 2001 on a framework decision to combat trafficking but it omits a saving clause concerning asylum seekers and refugees.

Secondly, once the asylum seeker has been able to reach EU territory despite all the obstacles, he might encounter difficulties lodging an asylum application in European countries and he is in any case not sure that he will have access to a "fair and efficient" asylum procedure.

First of all, this question is raised in the framework of the Dublin Convention. This Convention will be transposed into a 1st pillar instrument and the European Commission has tabled a proposal in July 2001 for a "Council regulation establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third country national". It would have been a good opportunity for reconsidering the Dublin Convention's whole "raison d'être" because the current Dublin Convention, linking allocation of responsibility for examining an asylum application with responsibility for controlling entry to the territory, is not working correctly and this fact is acknowledged by everybody (Member states, European institutions, NGOs..). As is advocated by ECRE, the new system in order to be clear, workable and effective, should allocate responsibility according to:

However the new proposal is unfortunately doomed to be ineffective and unworkable because it is based on the same flawed principles than the former Dublin Convention.

In addition, if asylum seekers have access to the procedures, access to a fair and efficient determination procedure is not ensured. This question of procedure is absolutely essential.
After a comprehensive working paper published in march 1999, the Commission has submitted a very detailed proposal for a directive on minimum standards on asylum procedures in September 2000. This proposal is the first step towards a common European asylum system as foreseen in the Tampere conclusions. The aim is to establish minimum standards at community level for a simple and quick system in which refugee status is granted or withdrawn. The aim of reducing the duration of asylum procedures is a good aim but this should not be made at the cost of removal of legal safeguards which may put applicants at risk of refoulement.
There are some positive aspects in the proposal especially because it provides for some procedural guarantees (information, interpreter, interview, contact with UNHCR and NGOs,….). The proposal contains also special safeguards for unaccompanied minors. Those are of the outmost importance and should be even strengthened in reaffirming the obligation of member states not to maintain minors in waiting zones and to give the benefit of the doubt to the minor in case of uncertainty about his/her age.
Many other concerns can be expressed. Generally there is too much room for "opting out" and too much discretion for member states in the proposal. In addition, some of the major shortcomings are the use of concepts such as "manifestly unfounded" claims, "safe third country", "safe country of origin" or "accelerated procedure" and the possibility of detention.
Indeed key elements of the proposal are far from the spirit of Tampere : notably in relation to the lack of suspensive right of appeal in case of "safe third country". On this concept, UNHCR states that "the question is whether that country is safe for this asylum seeker and is not a "generic" question which can be answered for any asylum seeker in any circumstances".
Similar concerns can be expressed with regard to the safe country of origin concept. Governments should never resort to applying the notion of safe country of origin in a way which effectively excludes certain nationals from having their asylum claim examined.
The concepts of manifestly unfounded and accelerated procedures are also of concern. The definition given in the proposal is extremely broad. The future directive must ensure that all procedures including accelerated procedures respect the minimum standards for fair and efficient asylum procedures under international law.

Anyway the Laeken Summit has invited the Commission to submit a new proposal on asylum procedures. Indeed the negotiations have been quite difficult so far and we hope that the revised proposal will contain less shortcomings.

After consideration of the question of procedure, the main and last issue to examine is the question of access to protection. This is the core of the protection system for refugees in Europe and where the main challenges are. Indeed if refugees gain access to a "fair and efficient asylum procedure" as examined before, protection based on the Geneva Convention may not be ensured. This is the true test of the commitment of member states to the "full and inclusive application of the Geneva Convention" as stated in the Tampere conclusions.

The Amsterdam Treaty, the Vienna Action plan, the Tampere conclusions place all decisions on responsibility-sharing, a new Dublin Convention, temporary protection, asylum procedures, etc, before a harmonised interpretation of the Geneva Convention. This approach and timetable are totally irrational and now that all the proposals are on the table, it would be more coherent that member states tackled the question of the refugee definition first.

There is a protection lottery in Europe based mainly on the fact that several European states adopt a narrow interpretation of the refugee Convention. In addition, many countries have questioned the continuing relevance of the Geneva Convention. Some States do it publicly and at least there is an open debate; some pretend to stick to the Geneva Convention as a kind of "holy" text but do not use it a lot in practice.

The Refugee Convention is the redress mechanism for human rights violations and has been successfully invoked in the protection of millions of people. It remains the only internationally agreed and binding definition guaranteeing protection from serious harm.

In September 2001, the European Commission has tabled a "proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees in accordance with the 1951 Convention on Refugees and the 1967 Protocol, or as persons who otherwise need international protection". This directive (the "definition directive") is the core of a common asylum system. In many aspects, we can consider that this proposal is close to a "full and inclusive" interpretation of the Refugee Convention in its definition of a social group for example and in its inclusion of persecution by non-state agents. It is positive that a single legislative instrument deals both with the definition of refugees according to the Geneva Convention and with the definition of who should benefit from a subsidiary form of protection.
We nevertheless can share some concerns with ECRE. The idea that "state" protection may be provided by international organisations and "stable, state-like authorities that control a clearly defined territory" is worrying because those authorities cannot sign international treaties, are not subject to international law and cannot be held responsible for ensuring that human rights standards are safeguarded. Additional areas of concern relate to differences in the rights granted to refugees and to persons with subsidiary protection with regard to the duration of residence permits, access to employment and access to integration facilities. The internal flight alternative might also be dangerous if additional guarantees are not included.
Another shortcoming relates to the scope of the definition directive limited to asylum seekers who are "third country nationals". This is quite logical with the Protocol to the Amsterdam treaty which states that member states should be regarded as safe countries of origin in respect of each other thus limiting the right of asylum of EU nationals in the EU. But this is one notable failing of the Treaty in the area of asylum.

A distinct question of protection concerns the question of temporary protection. Temporary protection is an emergency measure to deal with sudden large scale arrivals and it is a device for protection without an individual procedure.
This question has evolved recently after many years of disagreements among member states. The directive on temporary protection was adopted in July 2001 and this is the first piece of legislation relating to asylum formally adopted since the Tampere Summit. The directive contains a number of positive aspects: reasonable standards of rights for beneficiaries (including access to labour market); provisions for especially vulnerable groups; the establishment of a solidarity mechanism; guarantees of access to the asylum determination procedure. However, it falls short of acceptable standards in a number of areas: visa controls are not lifted even in an emergency situation ; there is no right of appeal against a refusal of temporary protection; there is no guarantee of freedom of movement and temporary protection can be withdrawn from a person who applies for asylum.

The last element that needs to be commented is the question of reception conditions of asylum seekers. The Commission has issued a proposal for a directive laying down minimum standards for the reception of asylum seekers in the member states in April 2001.
Several provisions of the proposal set adequate minimum standards notably the provision of information and documentation to asylum seekers; access to NGOs and legal advisors; access to the labour market after six months; reaffirmation of the best interest of the child; recognition of the need to maintain family unity and recognition of the special needs of certain vulnerable groups.
However some provisions are worrying like the ones providing for the withdrawal or reduction of rights in case of bad behaviour (very broad and mixed category); there are limits to the free movement of persons; there is a distinct access to health care in case of accelerated or normal procedures; there is a possibility of using vouchers.
The present negotiations within the Council and in working groups show that member states are far from an agreement on fundamental issues such as access to work for asylum seekers.

We hope that the Spanish Presidency will be able to put forward all those different proposals and that the concern for the fight against terrorism will not prevail over the need to progress in the field of asylum in the EU. Unfortunately, as ECRE notes, States' approach to the legislative process on those questions often reflects a lack of vision and political will to agree on common standards and during negotiations member states often show an important reluctance to move beyond national practice. Deterrence rather than protection remains the key concern of the majority of member states. This is exemplified in the enlargement negotiations : bigger and bigger pressure is put on the candidate countries to meet acceptable standards on issues such as border controls whereas the concern for the improvement of their asylum procedures or systems of reception for asylum seekers seems to be secondary.