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:
- 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
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
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:
- where the asylum seeker has a family member, provided s/he so agrees;
- where the asylum application is lodged.
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
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
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
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
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.