Setting the European asylum agenda:
UNHCR recommendations to the Tampere Summit (October 1999)
1. The Office of the United Nations High Commissioner for Refugees (UNHCR) attaches great importance to the convening of the European Council at Tampere in order to give impetus to the establishment of an area of freedom, security and justice under the new provisions of the Treaty on European Union, as revised by the Amsterdam Treaty. The Summit should give priority attention to the asylum issue as one of the important areas of justice and home affairs being subject to "communitarization" or increasing cooperation among Member States according to the relevant provisions of the Amsterdam Treaty.
2. UNHCR would like to see the Tampere summit stake out the political space within which a protection-based approach to asylum can be anchored and the fundamental rights of refugees and asylum-seekers secured. This will require political will in face of current trends. In manifesting such resolve, European States, which have traditionally been in the forefront of refugee law development, would remain a positive example to follow the world over. The significance of the future EU asylum standards and policy orientations go well beyond the European context - they are bound to influence the attitude of non-EU asylum countries.
3. In accordance with Declaration No. 17 to the Amsterdam Treaty, UNHCR hopes to be fully associated with the preparation and subsequent implementation of the relevant parts of the EU migration and asylum strategy to be adopted at the Summit.
II. Implementing the Amsterdam Treaty provisions
4. UNHCR hopes that the Tampere Summit will mark the beginning of a process resulting in the establishment of a comprehensive, concerted and outward-looking asylum and migration strategy for the future - enlarged - European Union. The various EU legislative instruments and measures to be formulated during the next five years following the entry into force of the Amsterdam Treaty must be developed within a strategic framework which takes account of their inter-relationship and relative importance and establishes the sequence in which these instruments can best be prepared. In the view of UNHCR, a coherent approach requires that common standards for the application of substantive asylum law be developed first, followed by measures for the harmonisation of asylum procedures, complementary protection schemes and temporary protection arrangements
5. Such an integrated strategy must keep a distinct focus on asylum policy and its protection dimension and ensure that asylum is preserved as a legal concept and not subordinated to the political, security and socio-economic dimensions of migration policy. Asylum is a right rooted in international human rights standards, and not a political offer subject to discretionary administrative measures, such as the establishment of admission quotas.
6. The implementation of the asylum provisions of the Amsterdam Treaty should be aimed ultimately at the full harmonization of procedural and material asylum law. UNHCR calls on Member States to ensure that future binding EU asylum instruments are in accordance with international refugee law and human rights law standards, such as those laid down in the 1951 Convention and its 1967 Protocol, as well as in the European Convention on Human Rights, as stated in Article 6 and Article 63 of the Amsterdam Treaty.
7. In codifying the present set of soft law asylum instruments, the present weaknesses of these instruments - which have led to problems in their implementation - need to be revisited with a view to adopting remedial measures and additional safeguards in order to render the future binding instruments truly protection-oriented. There is also a need to ensure coherence between the legal instruments to be developed under Title IV, in order to avoid that common measures in the areas of immigration and border control impact negatively on the right to seek and enjoy asylum.
8. UNHCR calls on the Summit to commit itself to giving meaningful substance to the asylum provisions of the Amsterdam Treaty. In implementing these provisions, the danger of downward harmonization should be avoided; there is a risk that the unanimity voting procedure may result in movement towards the lowest common denominator unless there is a strong commitment to work by consensus and adopt standards which are in accordance with related international standards of refugee law.
9. Moreover, difficulties of reaching unanimous agreement may lead Member States to empty the asylum provisions of Amsterdam of meaningful substance and to limit their contents to harmonisation of procedural issues of interest to States to the exclusion of substantive protection issues relating to the rights of the refugee. Recently this potential loss of substance has been in evidence in discussions of the European Commissions proposal on temporary protection.
III. Towards a Harmonised EU Asylum Policy
10. EU Member States have made substantial efforts to harmonise their asylum policies and practices, but much remains to be done. A harmonised European asylum policy should, in UNHCRs view, encompass the following five key elements: (i) a proper, common interpretation of the international definition of who is a refugee as contained in the 1951 Convention; (ii) accessible, fair and expeditious asylum procedures, complemented by new approaches to particular refugee situations (such as temporary protection in cases of sudden and large-scale influx); (iii) proper sharing of responsibility for receiving asylum-seekers without shifting the burden to those least able to accept such responsibility; (iv) appropriate systems and procedures for effecting the return of persons not in need of international protection; and (v) a preventive policy to address the human rights violations and other causes of refugee flight and forced displacement.
11. In the view of UNHCR, a future EU asylum policy should take as a starting point the full and inclusive application of the 1951 Convention refugee definition. A future EU instrument aimed at harmonizing the application of the refugee definition should acknowledge that asylum claims resulting from persecution by third parties come within the ambit of the 1951 Convention, and that the essential criterion for extending international protection is the risk of serious harm befalling the person - the presence of a well-founded fear of persecution - irrespective of the agent of persecution. Those who fulfil the criteria for refugee status under the 1951 Convention should enjoy the full set of rights contained in that Convention and not be given a second-class form of subsidiary protection as a substitute.
12. UNHCR accepts the rationale for developing - and harmonizing - complementary forms of protection to cover protection needs which cannot be addressed by a proper application of the 1951 Convention. Every person determined to be in need of protection should benefit from an appropriate level of legal security and socio-economic well-being derived from a status granted in accordance with objective criteria and not on the basis of administrative discretion. EU Member States, in determining needs for complementary protection are encouraged to consider how best to draw upon UNHCRs expertise in protection matters, taking due account of both the Offices supervisory role under the 1951 Convention and of its mandated activities.
13. UNHCR generally favours the adoption between States of agreements aimed at identifying the country responsible for examining an asylum request, as such agreements may help to avoid the problem of "refugees in orbit" and provide guarantees that an asylum request will be examined in substance by one of the contracting parties. UNHCR therefore has welcomed the entry into force of the Dublin Convention, provided its application is governed by fair and transparent procedures and due respect of protection principles, such as the protection of the family unit.
14. A transposition of the present Dublin mechanism in an EU legal instrument as foreseen by the Amsterdam Treaty needs to be conditioned on the maintenance of an agreed set of criteria to allocate responsibility for the examination of an asylum application in order to guarantee access to the asylum procedure in one of the EU Member States. Such a new mechanism should also provide for a humanitarian clause in order to avoid separation of family members or other situations impacting negatively the protection needs of asylum-seekers as a result of a strict application of the allocation criteria.
15. Harmonization of the criteria and procedures for the determination of refugee status can positively influence the fair and equitable application of the "Dublin" mechanism and ensure non-discriminatory treatment of all asylum applications irrespective of the country determined to be responsible for the examination of the claim.
16. UNHCR expects the Summit to reaffirm that fair and satisfactory asylum procedures, based on international standards of procedural asylum law, are a cornerstone of Member States asylum systems. Such procedures serve the dual purpose of identifying those who need international protection and those who do not and can, in principle, be safely returned home. UNHCR recommends that each Member State adopt a comprehensive procedure for determining in a holistic way all protection needs.
17. UNHCR favours the adoption of a single, unified asylum procedure in the EU in the medium-term. The Office sees this as a means to guarantee the effective harmonization of Member States asylum procedures and to resolve the existing considerable differences and exceptions which may result in discriminatory treatment and encourage secondary movement of asylum-seekers.
18. A future common asylum system in the EU should result in a streamlining and simplifying of procedures - this being in the interest of asylum-seekers and the authorities alike. The speeding up of the processing of asylum claims can be achieved by, inter alia, a streamlining of the appeal procedure. A well-resourced, fair and efficient first instance determination procedure may provide quicker results and, consequently, ensure legal safety and material security for deserving applicants. By eliminating unnecessary delays, it may also provide less opportunity for misuse and limit the risk that drawn-out procedures becomes in themselves a pull factor.
19. UNHCR supports recourse to temporary protection as a practical device which allows for a principled response by States to an urgent protection need in cases of sudden and large-scale influx of asylum-seekers displaced by war, mass expulsion or generalised violence. In such cases it may be impractical to apply individual status determination procedures. UNHCR believes that it should have a mandatory consultative role in any arrangements regarding the phasing in, review or termination of temporary protection regimes.
20. Temporary protection schemes should be distinguished clearly from complementary forms of protection, the former being applicable in situations of sudden and large-scale influx, whereas the latter are to be the result of individual status determination procedures. Temporary protection arrangements must not be conceived and implemented as an substitute for refugee protection under the 1951 Convention left to administrative discretion, but rather as a variation of admission and temporary refuge based on prima facie or group determination of the need for international protection.
21. Any future temporary protection coordination mechanism established at EU level should include an agreement on standards of treatment for its beneficiaries, and not be limited to procedural and organizational matters only. UNHCR is strongly of the view that beneficiaries of temporary protection need to be accorded a standard of rights which takes due account of the fact that many of them meet all the criteria for 1951 Convention status.
22. European asylum policy should be guided by the notions of international solidarity and burden- sharing. Any future EU burden-sharing mechanism should be complementary to, not at the expense of, global burden-sharing efforts, such as contributing to UNHCR programmes and providing for the resettlement of refugees. Account should be taken of the burden shouldered by countries in the immediate vicinity of the crisis region. While burden sharing can help ensure respect for the basic principles of refugee protection, it cannot be made a prerequisite to providing such protection. It should also take due account of humanitarian factors, such as the protection of the family unit or of cultural considerations which may call for exceptions to the application of distribution criteria.
23. A regional burden-sharing mechanism should be comprehensively conceived to include action at the pre-departure stage (prevention, emergency preparedness, political and military/peace-keeping action), through the influx (protection and assistance to refugees and displaced persons), on to durable solutions (voluntary return, local integration, or resettlement).
24. As with the implementation of a successor instrument to the Dublin Convention, the fair and effective implementation of a burden-sharing mechanism would benefit from the harmonization of conditions for the admission and standards of treatment of its beneficiaries. This can help to avoid discriminatory treatment and subsequent secondary movements.
25. In order to preserve the integrity of the asylum systems in EU Member States, appropriate procedures for effecting the return of persons not in need of international protection need to be developed, provided these persons have been screened out through a formal refugee status determination procedure which properly applies the refugee criteria. Such return programmes can be promoted through the conclusion of readmission agreements and readmission clauses in cooperation agreements. In so far these arrangements include also the return of asylum-seekers whose cases have not been heard to third countries where they could have found protection, they must contain sufficient safeguards that the persons returned can effectively seek asylum in those countries.
26. The European asylum challenge cannot be addressed in Europe alone. It is clearly in the interest of European States to situate their asylum and migration policy within a broader approach which addresses political, human rights and developmental issues in countries and regions of origin. Such a comprehensive approach to asylum and migration must encompass the entire continuum of forced population movements, from their causes to their eventual solutions. Preventive action addressing human rights violations and other causes of refugee flight and forced displacement is a key element of such an approach.
27. UNHCR supports efforts to move the asylum debate out of a framework premised on restrictiveness and deterrence into one which engages more constructive foreign policy initiatives. In the view of UNHCR there are strong grounds to institutionalise the inter-pillar cooperation on migration and asylum issues that has recently been tested in the work of the High Level Working Group on Migration and Asylum.
28. UNHCR hopes that sufficient attention will be given to the protection dimension of the country plans which have been developed by the High Level Working Group so far, as well as those to be designed and implemented in future. Programmes for reception in the region, and/or return to countries of origin, need to be inspired by a number of protection principles such as physical safety, legal security and socio-economic well-being.
29. Measures to strengthen the protection capacities of countries in the region of origin do not absolve Member States of their responsibility to fulfil their protection obligations towards those who are seeking asylum on their territory.
IV. Concluding remarks
30. It is UNHCRs strong belief that a future harmonised European asylum policy must be firmly rooted in the proper and inclusive application of the 1951 Convention. The right to seek and enjoy asylum must be maintained as a human right and its further development and enforcement in Europe should be strengthened by the EU harmonisation process.
31. A comprehensive and forward-looking asylum policy in Europe that respects international standards for refugee protection will be to the benefit of refugees, asylum-seekers and States alike. The implementation of the relevant provisions of the Amsterdam Treaty represent an important opportunity to achieve this goal.
32. An important factor in the process to harmonise asylum policy and practice in the European Union is the future enlargement of the Union through the accession of candidate countries in Central Europe. These countries need to be further assisted in developing sustainable and comprehensive asylum systems which meet the requirements of EU membership as well as international standards for the protection of the refugee. Preparations for future EU membership are a unique opportunity to help these countries to adopt and implement the necessary legislative and administrative arrangements to develop the required institutional capacity, and, hence, to turn from transit countries for asylum-seekers into countries of destination for refugees.
23 July 1999