Lecture in the Cicero Foundation Great Debate seminar 'European Refugee and Migration Policy - New Developments'

Introduction

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 and refugees.
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 harmonisation.

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 Presidency.
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 refugee status

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 explanation.

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):

1. Access to the territory
2. Access to determination procedures
3. Access to protection
4. 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" asylum procedure.

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 family members;
• 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 age.

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 reception conditions.

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 family reunion.

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 any limitation.

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.

Conclusion

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.

Thank you.

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