Forum Réfugiés, France
Member of the European Council on Refugee and Exiles ECRE
HOW TO SAFEGUARD REFUGEE PROTECTION IN THE PROCESS OF EUROPEAN HARMONISATION?
PARIS, 15 February 2001
Lecture in the Cicero Foundation Great Debate seminar 'European Refugee and
Migration Policy - New Developments'
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.
ECRE is a non-governmental umbrella organisation of some 70 agencies from 25
countries throughout Europe concerned with assistance and protection of refugees
and asylum seekers in Europe. ECRE campaigns on behalf of its pan-European membership
for humane and fair asylum policies. It also works towards establishing the
highest standards of refugee protection and assistance in Europe.
As a staff member of a French refugee assisting NGO in charge of European affairs,
I can see that even if European harmonisation in the field of asylum is quite
a medium or even long-term perspective, we should not underestimate the immediate
practical effect most of the European initiatives and negotiations have on national
policies and legislation, especially since the speeding up process of harmonisation
in the framework of the Amsterdam Treaty.
Also Eastern and Central European States aiming to join the European Union
in the enlargement process are already adapting their legislation to mirror
EU asylum standards.
Our concern is that this process of harmonisation safeguards refugee protection
in Europe and we must be very vigilant about the current developments.
The Amsterdam Treaty, while transferring the issues relating to asylum and
immigration to the first pillar (community competences) creates 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
We can see both opportunities and threats in this process.
The first risk would be that agreements and pieces of "soft law" adopted under
the third pillar (Maastricht Treaty) or even before in a very obscure way by
different ad hoc groups and committees are the basis for EU legislation without
serious reconsidering of the content of those resolutions, recommendations,
etc…and in a spirit of the "lowest common denominator" reinforced by the unanimity
voting procedure. ECRE is deeply concerned that in the process of developing
a common European asylum system, standards will be discarded in order to achieve
Democratic Accountability: The Role of the European Parliament and of NGOs
The second challenge is the question of democratic accountability in the framework
of the Amsterdam Treaty. Indeed the role of the European Parliament and even
of the European Commission, especially during the time of semi-community activities
is quite limited or constrained. We must acknowledge that a positive role can
be played by the European Parliament, even if its role is only consultative
(at least its consultation is now compulsory). ECRE also urges member states
to allow expert NGOs, UN bodies and other relevant international organisations
to fulfil their consultative role by transmitting all relevant documents well
in advance of final council decisions. The German Presidency followed by the
Finnish Presidency did so, for example, as is willing to do as well the Swedish
There is a huge potential and challenge for the civil society to play a vital
role in monitoring and contributing to the development of the Community instruments.
Its role has been legally recognised in Declaration 17 of the Amsterdam Treaty
relating to consultation with UNHCR and other international organisations. This
role has been already actively played by those actors and as a matter of fact
by ECRE during a Tampere Parallel Summit. This Parallel Summit, organised by
ECRE, gathered some 300 participants and was taking place during the European
Council negotiations in Tampere. When the Summit conclusions came out, ECRE
broadly welcomed them and the Finnish Prime Minister referred to ECRE's positions
both at the closing official press conference as well as later at the EP. He
quoted ECRE in stating that "in many respects Tampere was a step away from Fortress
Europe". However, ECRE reaffirmed that it would need to remain vigilant as to
the implementation of the Tampere Conclusions.
Indeed the Tampere Summit gave a very good political impetus for the development
of a European asylum system which would safeguard refugee protection but guarantees
are crucial "as the best asylum policy in the world is no use unless refugees
can access its protection".
The Tampere Commitments
Let us recall the main Tampere commitments:
- strong reaffirmation by the Council of the right to seek asylum
- emphasis on the need to apply the 1951 Convention fully and inclusively
- intention to move beyond minimum levels of harmonisation and to aim for
a common system, both in terms of asylum procedures and, eventually, a uniform
However, in practice are we still in this "Tampere spirit"?
The protection of refugees is not merely a matter of legislation in conformity
with human rights and refugee law standards but also of state practice. As a
matter of fact, all EU member states are signatories of the 1951 Refugee Convention
and of the European Convention on Human Rights and other human rights instruments,
but there are nevertheless problems of protection. We are concerned that the
process of harmonisation of asylum regimes in Europe may undermine the international
regime for the protection of refugees.
This is what I will try to underline while going in some details into the content
of the current European asylum proposals and initiatives. The Amsterdam Treaty,
the Vienna Action plan, the Tampere conclusions, the scoreboard, place all decisions
on responsibility-sharing, a new Dublin Convention, temporary protection, procedures
for deciding who is a refugee, etc, before a harmonised interpretation of the
Geneva Convention. The irrationality of this approach and timetable needs no
In my presentation, I will try not to follow the chronological order of the
subjects, as they are coming on the EU agenda but rather as they come on the
route of an asylum seeker, trying to escape persecution and reach Europe. This
approach raises questions of protection at different levels (that often overlap
but that we can divide in 4 main parts):
- Access to the territory
- Access to determination procedures
- Access to protection
- Access to rights as refugees
1. ACCESS TO THE TERRITORY
There have been repeated and various attempts to prevent refugees form leaving
their place of persecution and to prevent them from accessing protection, through
visa regimes, carriers' sanctions, so-called "safe third country" practices
and "regionalisation"of refugee protection by designation of "safe havens".
ECRE can see 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 recent French
Presidency has been particularly active in tabling initiatives in this field.
The objectives of combating trafficking and smuggling are essential. 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 recent 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.
Also in accordance with article 31, detention should never be based solely
upon an asylum seeker's illegal entry or irregular residence on the territory
and claims from irregular entrants should never be classified as "manifestly
unfounded" solely for that reason.
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.
All those different deterrent measures are combined in the different French
proposals and they contain many shortcomings that we hope will be deleted in
the definitive versions. Objections by many member states during the negotiations
show that a consensus is fortunately not yet reached and we hope that the rights
of refugees and asylum seekers will be protected by the incorporation of a "savings
clause" and by a provision protecting the work of the organisations that assist
asylum seekers and refugees out of purely humanitarian motives.
Other aspects of European developments can be seen as presenting potential
threats to the access to the territory, such as the work undertaken in the framework
of the High Level Working Group on asylum and migration (HLWG). ECRE welcomes
this EU cross pillar approach to migration and asylum policy. However, we consider
that this potential will not be realised if the working group's sole objective
is to curb the arrival of illegal migrants to the EU and its approach to the
agenda is primarily control-oriented. The approach should be protection-oriented
and human rights based. Part of the brief of the HLWG is to look at proposals
on the "assistance in the reception of displaced persons in the region" of origin.
This puts an heavy burden on those regions and is often a way to escape from
our responsibility as "rich" reception countries. In addition, there are many
difficulties of implementation , e.g. the lack of effective dialogue with the
countries tackled (particularly Afghanistan, Iraq, Somalia). The focus on tackling
the root causes of migration is definitively essential, but it is a long term
perspective that requires co-operation with all the national governments, international
organisations, NGOs…. In addition, the action plans develop no real strategy
to address effectively human rights violations.
2. ACCESS TO DETERMINATION PROCEDURES
Once the asylum seeker has been able to reach EU territory, he might encounter
many difficulties in 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"
First of all, this question is raised in the framework of the Dublin Convention.
This Convention will be transposed into a First Pillar instrument and the European
Commission has already submitted a staff working paper on this subject. We believe
that this is time for reconsidering the Dublin Convention's whole "raison d'être"
after a full and fair evaluation. As I said before, we believe that harmonisation
of both substantive law and procedures should be a prerequisite for the fair
implementation of Community legislation replacing the Dublin Convention.
Any European Community legislation replacing it should:
- respect family unity of applicants and ensure the reunification of separated
- address the failure of its predecessor to provide for the socio-economic
rights of asylum seekers awaiting a decision under its terms;
- provide all asylum seekers with a suspensory right of appeal against a decision
to transfer the application to another MS;
- remove the "safe third country" concept which can potentially lead to refoulement
- establish greater transparency with regard to procedure and decision.
The current Dublin Convention, linking allocation of responsibility for examining
an asylum application with responsibility for controlling entry to the territory,
is not working.
Of the 4 alternatives proposed by the Commission, ECRE would favour a system
based on allocation of responsibility according to:
- where the asylum seeker has a family member, provided s/he agrees;
- where the asylum application is lodged.
This system would be clear, workable and effective. Importantly, it also meets
the criteria of a system that is fair and humane for asylum seekers. So it is
in the interests of both member states and asylum applicants.
Finally, if asylum seekers have access to the procedures, access to a fair
and efficient determination procedure is not ensured. The question of procedure
is absolutely essential.
After a comprehensive working paper published in march 1999, the Commission
has recently submitted a proposal for a directive on minimum standards on asylum
procedures (sept. 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, especially because it provides for some procedural
guarantees (information, interpreter, interview, contact with UNHCR and NGOs,….).
However many concerns can be expressed. 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".
Generally there is too much room for "opting out" and too much discretion for
member states in the proposal. Also the right to legal assistance at all stages
of the procedure for all asylum seekers is not included.Even if the proposal
ensures the same treatment regardless of if the application is lodged at the
border or within the territory, this provision does not provide legal access
to the territory.
Another worrying aspect is the fact that deportation is possible, although
no final decision is taken in case of "safe third country". We believe that
the practice of "safe third country" by some member states should be stopped
by the EU. According to UNHCR, "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". Certainly it seems timely to reconsider
the low standards of safety currently applied to third countries by several
member states (at least, the following should be guaranteed: not return asylum
seeker who have family ties in the country, not return asylum seekers to states
which do not fully implement the provisions of the 1951 Convention, not return
asylum seekers to states without prior guarantees that the state will allow
applicant access to a fair and efficient refugee determination procedure, inform
the applicant in a language s/he understands, provide the applicant with an
effective opportunity to appeal against the deportation order…).
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.
Another worrying element in the proposal is that it allows member states to
derogate from suspensive effects of appeal in the case of application of the
safe third country concept and if the application is manifestly unfounded.
These 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 which are described in the proposal.
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
After consideration of the aspects of access to procedures, the main question
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:
3. ACCESS TO PROTECTION
This question relates to the application of the Geneva Convention, the development
of subsidiary forms of protection, the concept of temporary protection and the
There is a protection lottery in Europe, based mainly on the fact that several
European states adopt a narrow interpretation of the refugee Convention which,
in our view, is often not legally correct. In addition, many countries even
very recently have questioned the continuing relevance of the Geneva Convention.
The Refugee Convention is the redress mechanism for human rights violations
and has been successfully invoked in the protection of millions. It remains
the only internationally agreed and binding definition guaranteeing protection
from serious harm.
We believe that it is not the role of the EU nor any other regional body to
define who should qualify for protection under the 1951 Convention. This is
in the supervisory role of UNHCR. The EU should accept the Universal UN standards
on interpretation of the refugee definition as sufficient minimum standards
and, based upon evolving jurisprudence, should elaborate upon these standards
within the forum of UNHCR. In this field, we hope that the 1996 EU Joint Position
on the harmonised application of the definition of the term "refugee" in article
1 of the Geneva Convention will not be transposed as it stands into European
Community legislation (which is foreseen by 2004 at the earliest).
Specifically, any new instrument should accept that a person who risks persecution
by non state agents, even when the state is willing but simply unable to control
these agents, may qualify as a refugee. This would ensure protection to many
refugees fleeing from countries where the central government is losing or has
lost effective control of its territory.
Are EU Member States Always Safe Countries of Origin?
Another threat to the full application of the Geneva Convention is the Protocol
to the Amsterdam treaty, stating 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. This is the most notable failing of the Treaty in
the area of asylum. It constitutes a geographical limitation to the implementation
of the Geneva Convention,despite the fact that all member states are signatories
of the 1967 Protocol. The worrying fact is that article 18 of the Charter of
Fundamental rights adopted recently refers to the Amsterdam Treaty therefore
to this Protocol as well.
In the long term, as EU enlargement and political agreements move outwards,
the consequences of an approach based on so called safe countries will be to
squeeze the viable "asylum space" in the world continually down to size. There
have been many references to such concepts recently especially in a proposition
presented by Jack Straw, who proposes a system with three categories of countries
of origin: high risk, intermediate and safe as a basis of the way in which asylum
applications from nationals of those countries could be treated by member states.
This is contrary to international human rights standards and impractical (for
political and economic considerations).
On Complementary Forms of Protection
The situation regarding the granting of complementary forms of protection is
even more complex. One thing which is common to nearly all EU states is that
complementary forms of protection are increasingly preferred to recognition
of refugee status.
A supplementary refugee definition to protect only those who fall beyond a correct
and extensive interpretation of the 1951 Convention definition may be legitimate
in the EU regional forum. Indeed this is an important and urgent task for the
EU. In operational terms, we recognise that each EU state should offer a single
determination procedure to all persons seeking international protection and
then determine the status as appropriate.
Plus, in order to promote social coherence and prevent social exclusion, there
needs to be broad parity of social, economic, cultural and civil rights between
Convention refugees and those afforded a complementary form of protection. The
concept of "protection" does not mean merely the suspension of deportation;
it involves the enjoyment of at least certain basic rights.
The question of complementary forms of protection is to be clearly distinguished
from temporary protection. Temporary protection is an emergency measure to deal
with sudden large scale arrivals and complementary forms of protection are granted
to applicants a the result of a determination procedure. Temporary protection
is a device for protection without an individual procedure.
The question of temporary protection has evolved recently after many years
of disagreements among member states. Definitive agreement is not found yet
and we are probably far from it but the recent Kosovo crisis has urgently put
the question on the EU agenda. The Commission has tabled a proposal on the subject
and the French Presidency a note. We believe that any future instrument developed
to harmonise temporary protection must ensure that it respects the 1951 Convention,
in particular with regard to granting access to determination procedures. A
big problem in the negotiation concerns responsibility sharing. ECRE believes
that financial solidarity schemes are, as a general rule, preferable to measures
which involve the physical redistribution of persons (obstacles of family unity,
cultural, historical and linguistic links. On this, at least, an agreement was
found among member states on a budget line through the European Refugee Fund.
This is a first step in the right direction.
Reception Conditions of Asylum Seekers
The last element that needs to be commented in the field of access to protection
is the question of reception conditions of asylum seekers. This question is
high on the EU agenda and the French Presidency has submitted a note on this
subject. The Commission has issued a discussion paper and is expected to submit
soon a proposal for a Community instrument. At present several member states
not only deny asylum seekers access to the means to secure legal advice and
representation, but also limit their freedom of residence, limit social security
payments, limit access to other than emergency health care and access to education.
ECRE strongly believes that the EU's legal instrument on minimum standards
for reception conditions should be applicable to all applications for protection
(Geneva Convention and under other forms of protection) and should remedy the
above mentioned limitations. In particular, as a general rule, asylum seekers
should not be detained. If asylum applicants are detained at border, sea or
airports, they should be provided with all necessary assistance, including food,
shelter, effective access to legal advice and representation, qualified interpreters,
medical an sanitary services. In addition, EU member states have a legal obligation
to ensure all asylum applicants have accommodation from the time of arrival
and throughout the procedure.
Concerning the means of subsistence, ECRE is opposed to the use of vouchers
as they stigmatise and humiliate asylum applicants. Social assistance should
be received as money sufficient to cover basic needs and within reasonable time.
Finally, ECRE strongly believes that asylum seekers should benefit from access
to the labour market of the host state at the earliest possible stage and at
the latest after 6 months following the lodging of an asylum application. This
is in the interests of both member states and asylum applicants.
Last but not least, we have talked a lot about the protection of asylum seekers
but we should not forget that a good protection system in Europe should also
pay attention to refugees once they are recognised as such in member states.
4. ACCESS TO RIGHTS OF REFUGEES
This raises the issue of integration. The main issues at stake in this area
are at the moment the question of free travel of refugees and the question of
The question of the right of third country nationals to travel in the EU should
be solved as soon as possible in the framework of a directive and the right
of refugees to travel, reside and work in the EU should be recognised without
The question of family reunion is the subject of a recent Commission proposal.
The main problem remains with the scope of the future Community instrument.
ECRE believes that it should be applicable to both the Conventional refugees
and the beneficiaries of complementary protection and they should have immediate
access to the right to family reunification upon status determination.They should
be exempted from meeting any eligibility requirements for family reunification
relating to the length of residence, employment status and access to appropriate
housing and independent income of the principal applicant.
The right to family reunification should not be limited to nuclear family members.
Members of the same family should have the right to be together during the asylum
procedure when they were forced to apply for asylum in different countries.
The right to family unity of persons under temporary protection should be respected.
Each state should legally adopt and implement procedures for the fair and efficient
processing of family reunification applications. Family reunification should
take place with the least possible delay and within a period of 6 months from
the time an application is made. The absence of documentary proof of relationships
should not affect the credibility of the application for family reunification
nor result in the application being considered fraudulent. Family members of
the applicant should have access to the same socio-economic and other rights
as the applicant.
Well, I hope you had a quite comprehensive approach of all the issues at stake
with regard to the safeguard of refugee protection in the process of European
harmonisation. There is still much to be done to fully guarantee refugee protection
in Europe. The current Swedish Presidency of the EU seems to have a positive
input in this debate and seems determined to raise the standards of protection
rather than lowering them. They will be a lot of energy and conviction to counterbalance
negative tendencies of some states.
The European Council in December 2001 assessing the progress made will be an
important occasion to measure the level of commitment and sincerity of EU member
states in translating into concrete measures the policy guidelines laid down
in the Tampere conclusions.