Member of the Executive Committee of ECRE - European Council for Refugees
and Exiles, London
AFTER AMSTERDAM: HOW TO SAFEGUARD REFUGEE PROTECTION IN THE PROCESS OF
Lecture in the Cicero Foundation Great Debate seminar: "European Migration
and Refugee Policy - PARIS, 10 June 1999
First of all, I would like to thank the Cicero Foundation for the invitation
to the European Council on Refugees and Exiles (ECRE) to participate in this
conference and for providing ECRE the opportunity to contribute to the general
debate on the perspective of the refugee protection in the light of the implementation
of the Amsterdam Treaty.
Let me introduce very shortly ECRE: ECRE is a non-governmental umbrella organization
of some 60 agencies from 25 countries throughout Europe concerned with assistance
and protection of refugees and asylum seekers in Europe. ECRE campaigns on behalf
on its pan-European membership for humane and fair asylum policies. It also
works towards establishing the highest standard of refugee protection and assistance
The universal declaration of Human rights proclaims the right of everyone to
seek and enjoy asylum. This right however has no meaning if there is nowhere
for someone to go. And there is no doubt that entry into the EU has been increasingly
been made very difficult in the last ten years both at the European and at the
national level: readmission agreements, the notion of the safe third country,
the "internal flight alternative", the imposition of the visa requirements and
carrier sanctions as stipulated in the Schengen convention are all measures
which have been taken in order to prevent refugees leaving their country and
from entering the European territory to make an asylum claim.
Given the nature of events or the types of violations going on in countries
of origin, these obstacles may mean for those who are prevented from fleeing
a matter of life and death. Obstacles to admission have been accompanied by
attempts to reduce the scope of the 1951 Convention relative to the refugee
status and introduced restrictions to its implementation. Examples include the
1992 London resolutions on manifestly unfounded applications, on a harmonized
approach to questions concerning host third countries where there is no serious
risk of prosecution and - in matters of substance rather than procedure - the
1996 joint position on the harmonized application of Article of the 1951 convention.
Although legally non-binding, but politically binding, these resolutions have
led to an acceleration of asylum procedures, a substantive curtailment of appeal
rights and an increasingly restrictive interpretation of the refugee definition
of the Geneva Convention.
The Maastricht Treaty
The implementation of the Maastricht Treaty on European Union in November 1993,
for the first time in its history, provided the European Community for some
institutional legitimacy in dealing with the issues of asylum and immigration
which are declared of "common interests". Under title VI, the Maastricht treaty
transferred work on asylum and immigration from the area of informal cooperation
amongst member states (outside any legal framework) to formal intergovernmental
cooperation in the frame work of the socalled Third Pillar. By doing so, Maastricht
established formally a intergovernmental cooperation in the fields of justice
and home affairs. This Treaty represented a major step ahead towards a possible
integration of these matters into the Competences of the community (First Pillar),
and a positive although unsufficient improvement of the role devoted to the
European Commission and Parliament on these matters. However, Maastricht did
not provide the necessary transparency and democracy of the decision-making
The Treaty of Amsterdam
In the process leading to the signing of the Amsterdam Treaty, the intergovernmental
conference (96/97) first raised high expectations from many non-governmental
organisations that it would mark a new era of democratic and judicial accountability
in EU decision making relating to asylum matters. In this context, the Amsterdam
treaty can be interpreted both as a disappointing postponement of the necessary
reforms and as an important step towards their eventual achievement.
There is no doubt that the Amsterdam Treaty, which came into force on May 1st,
1999, represents a key element in the evolution of the EU towards an increasing
commitment to human rights and fundamental democratic values. The Treaty in
article 6 of the Treaty of the EU solemnly declares the Union to be founded
on the principle of liberty, democracy, respect for human rights and fundamental
freedoms, and the rule of law. There have also been some moves towards more
openness and democratic and judicial control by the European Parliament and
European Court of Justice.
ECRE considers 1999 to be a very important, possibly even a decisive year in
determining the future direction of asylum policies within the EU. In the Treaty
of Amsterdam (Art. 63) and in the socalled Action Plan (on how best to implement
the provisions of the Treaty of Amsterdam establishing an area of freedom, security
and justice) adopted by the European Commission and the Council on the 3rd of
December 1998, the EU has set itself a promising agenda of work for the coming
years with time limits for undertaking such work, and some unique opportunities
lie ahead for States to take a creative and principled approach towards asylum
ECRE views the signing of the Treaty of Amsterdam as a fundamental step toward
the creation of a dynamic for European immigration and asylum policy. For the
first time, immigration and asylum are incorporated initially into the area
of semi-community activity (during the first five years from the time the Treaty
comes into force) and then full community activity. At the same time, community
institutions are given the power to adopt binding rules in the field of immigration
and asylum which are to be transposed into national law.
There was one key negative development in the treaty: the Protocol on Asylum
for nationals of EU Member States, which seemed to be based on the assumption
that it is impossible for European states to commit violations of human rights
which would give ground for an asylum claim. However most of the member states
in between committed themselves to continue examining all asylum applications
on an individual basis.
What is clear is that the Treaty, while transferring the issue relating to
asylum immigration to the First Pillar (community competences) creates an imperative
for member states to develop a series of community instruments within a short
deadline (2 or 5 years) which will govern the lives of many millions of migrants,
asylum seekers refugees and other third nationals within and beyond the borders
of the Union.
The Plan of Action
As far as asylum and refugees questions are concerned, the plan of action lists
the following fields where measures should be taken:
Within 2 years:
- assessment of the situation in the countries of origin of asylum seekers and
migrants in order to formulate a country specific integrated approach (cf. high-level
- monitoring and improvement of effectiveness of the implementation of the Dublin
Convention including the issue of family reunion and the possible development
of a new instrument
- implementation of EURODAC: European databank of fingerprints for asylum seekers,
in order to avoid simultaneous or successive multiple applications in Europe
- adoption of minimal standards on asylum procedures (cf. working document of
the Commission from 3.3.99)(inter alia reducing the asylum procedure)
- limitation of the "secondary movement" by asylum seekers between member states
- defining minimal standards on the reception of asylum seekers
- undertake a study with a view to establishing the merits of a single European
Within 5 years:
- adoption of minimum standards with respect to the qualification of nationals
of third countries as refugees (harmonisation of the criteria)
- adoption of minimum standards for subsidiary protection to persons in need
of protection (outside the scope of Geneva Convention)(Lindeperg Report)
As soon as possible:
- establishng minimum standards for giving temporary protection to displaced
persons from a third country who cannot return to their country of origin (Example:
- establishing a system of sharing the responsibility of receiving displaced
persons/promote a balance of effort between member states in receiving and bearing
consequences of receiving displaced persons.
A Role for NGOs?
There is a huge potential for civil society to play a vital role in monitoring
and contributing to the development of these community instruments. Its role
has been legally recognized in Declaration No. 17 to the Amsterdam Treaty relating
to consultation with UNHCR and other international organizations. ECRE, together
with two organizations: the Migration Policy Group and the European Network
Against Racism (ENAR) have recently jointly compiled a paper entitled "Guarding
standards - shaping agenda" on the entry into force of the Amsterdam Treaty
in relation to asylum and immigration policies. This paper contains the views
on how governments could implement the Treaty in a humane and fair way, in compliance
with international human rights standards.
NGO Alternative Action Plan
We believe that the priorities should be determined not only by existing plans
and the need to continue taking forward present medium-term programmes (Paragraph
27), but also and mainly by what is the most urgent to be decided on to meet
the asylum seekers and refugee needs.
By this criteria, we would argue that the issues of refugee definition and
the standards attached to complementary forms of protection require handling
within two years, while the development of a new instrument related to the Dublin
Convention and safe third country returns could be postponed until a clearer
evaluation of this Convention is available.
As already mentioned, it is important to stress that a range of topics which
are to be dealt with under the Amsterdam Treaty, have already been addressed
at inter-governmental level in the early 90s in so called "soft law". The 1998
Action Plan refers briefly to the crucial question of "which if any of the present
provisions (Third Pillar acquis) should be replaced by more effective ones".
Regarding the numerous agreements and pieces of "soft law" which were adopted
under the Third Pillar, many experts in the field believe that they will be
taken as a basis for much of the new EU legislation.
Our concern is to ensure that this is not done without some hard critical rethinking
and a principled commitment by Member States to avoid the "lowest common denominator"
approach which prevailed so far. In that context, ECRE always welcomed the Commission's
ability to balance divergent interests. In the last few years, the Commission
has in our view indeed submitted various proposals which are properly balancing
the legitimate interests of member states and the protection need for refugees.
We also welcome the recent initiative taken by the Commission to issue a working
document entitled "Towards common standards on asylum procedures" (March, 1999)
which we fell provide a good basis for discussion and presents a well balanced
approach on this issue.
Transparency and Democracy
Our main concerns remain the question of democratic accountability.
This is because of the proposed limited role of the European Parliament and
European Commission especially during the time of semi-community activities.
The risk is high of using the lowest common denominator in determining
standards of refugee protection, as an outcome of the requirement for unanimous
voting and in particular in view of lack of references to the Geneva Convention
in relation to measures for temporary protection, responsibility sharing and
situations of mass influx of refugees.
We strongly feel that national and European parliamentary scrutiny and well-informed
public debate, often lacking when the original non-binding resolutions and joint
actions were adopted, should be encouraged.
The inter-parliamentary conference which brings together members of the European
Parliament and the EU national parliaments to debate these issues is obviously
very important to this process of democratic scrutiny. In addition, the Conference
of European Affairs Committees (COSAC - Conference des organes specialisÚs dans
les affaires communautaires), which includes representatives of national parliaments,
now may examine any legislative proposal or initiative under the new immigration
and asylum title which "might have direct bearing on the rights and freedoms
of individuals" and should be urged to do so at every opportunity.
The Treaty of Amsterdam itself provides a legal basis towards more democracy
and transparency. Indeed, a new Article 254 promises that EU documents will
be made available, subject to approval by the Council, and if no single member
raises an objection. Combined with the consultative role of the Parliament,
this could and should bring some degree of transparency to the legislative process
of the Council of Ministers. ECRE also urges Member States to allow expert NGOs,
UN bodies and other international organizations to fulfil their consultative
role by transmitting all relevant documents well in advance of final Council
Incorporation of the Schengen Acquis
Through the Amsterdam Treaty, all Member States, except Ireland and the United
Kingdom, will incorporate the socalled Schengen Acquis (agreement and decisions
taken by the Schengen Committee) into the EC Treaty and the Treaty on EU. Some
parts of the Schengen acquis will go to the Third Pillar (probably those related
to border control, admission for short term and visa). The legal basis for each
provision will be determined by the Council of Ministers.
The matters relating to asylum are overtaken by the provisions of the Dublin
Convention. This is the logical development of what was always meant to be the
Schengen "laboratory". UK and Ireland being part of the Dublin Convention, these
provisions of the Schengen agreement will also apply in these two countries.
ECRE believes that the process of incorporation offers the opportunity of suppressing
the provisions relating to carrier liability for carrying undocumented passengers.
We all know that, combined with a restrictive visa policy, carrier sanctions
have undoubtedly led to prevent potential refugees from leaving their country
where they are persecuted, as airlines and other carriers refuse to allow them
in without visas and other valid documents.
Some Suggestions for Guaranteeing a High Level of Refugee Protection for
(for detailed recommendation, see NGO Alternative Action Plan)
1. First of all, there is a need for a comprehensive analysis of migration
trends and the development of differentiated strategies to deal on the one
hand with large-scale movements of people escaping persecution, violation of
human rights and civil strife, and on the other hand movements of people escaping
from poverty, environmental degradation and gross economic inequalities. The
Austrian presidency paper on Asylum and Immigration represented an ambitious
effort to fill this gap. However, its overall conclusions on asylum matters
were oriented towards protecting the European Union from refugees rather than
providing protection to refugees themselves.
Potential for change may exist within current initiatives such as the creation
of the cross-pillar High Level Working Group on asylum and Migration. ECRE is
following carefully developments in relation to this initiative with interest
and very much welcomes the possibilities it offers for NGO input. NGOs will
be particularly careful that this group input does not end up in establishing
criteria of a common list of safe country of origin. In terms of refugee protection,
we feel that the test of effectiveness for the Working Group lies in moving
beyond "joint analysis of the causes of migratory/refugee movements" in a time
limited/country specific fashion to long term action aimed concretely at addressing
root causes and improving the human rights' situation in refugee producing countries.
2. Secondly, ECRE recommends that the EU takes the opportunity offered by the
Amsterdam Treaty (Article 63, etc.) and that it does rethink carefully the
content of the "soft law" so far developed in terms of effectiveness and
fairness, before introducing new legally binding instruments. An example would
be the Dublin Convention in the framework of Article 63(1)(a) on "criteria and
mechanisms for determining which Member State is responsible for considering
an application for asylum submitted by a national of a third country in one
of the Member States". Here, ECRE would recommend that it might be time to reconsider
the Dublin Convention in view of the heavy procedures and administrative costs
associated with implementation, as well as the burdens continuing being placed
on certain countries. In fact, Germany, the country with in absolute terms the
highest number of asylum seekers, receives more asylum seekers under the Dublin
Convention then it looses. Perhaps, the way forward lies in a careful evaluation
of implementation from the perspective of responsibility sharing, administrative
efficiency and, most importantly, refugee protection, before a new instrument
is introduced. Any such instrument should at a minimum respect the family unity
of applicants and their socio-economic rights and guarantee the exercise of
a suspensive right of appeal against a decision to transfer a claim.
3. Thirdly, it is necessary to look beyond traditional asylum and consider
options of resettlement for those with ongoing protection needs or supplementary
protection for those falling outside the scope of the Geneva Convention
definition, along the line proposed by the Lindeperg Report of the European
Parliament (February 1999).
Following the Lindeperg Report, to which it has greatly contributed, ECRE would
recommend the development, within the first two years of the Amsterdam Treaty
coming into effect, of a new instrument containing a supplementary refugee
definition for Europe, covering people fleeing generalised violence, foreign
aggression, internal conflicts, massive violation of human rights or people
who are unwilling to return owing to a well-founded fear of being tortured or
subjected to inhuman and degrading treatment or punishment. It would also recommend
the adoption of a non-binding agreement on EU participation as a bloc in
the UNHCR resettlement system as a gesture of global responsibility sharing.
4. Fourthly, there is the need for further transparency, openness and co-ordination
at the European level and a greater civil society involvement in the field of
Justice and Home Affairs. I would reiterate here ECRE's support for co-decision
powers for the European Parliament and a central role for the Commission in
balancing the legitimate interests of states and the protection needs of refugees.
Such role should extend beyond an exclusive right of initiative and include
ongoing co-ordination of relevant parties across pillars.
How close are we to an "integrated and coherent response which combines realism
and solidarity"? (Communication 1994 of the European Commission on Asylum and
There have been recently missed opportunities for leadership, whether it is
the Kurdish question or the crisis in Kosovo, and we need to address the key
question: how shall we collectively fulfil our duty to provide international
protection on the basis of shared responsibility and vigorous respect for human
Very much can be done and, as we describe it, the potential scope for a comprehensive
approach on the issue of asylum/immigration and of raising the level of refugee
protection in Europe is there, provided the political will allows it. In that
context, it is important to continue upholding the 1951 Convention and UNHCR
as an institution as relevant to refugee realities in the present time and key
to maintaining the principle of universality in human rights, including the
right to seek and enjoy asylum.