Amnesty International Response to the European Commissions proposal for a
Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof
I GENERAL PRINCIPLES
In order to implement the Amsterdam Treaty, the Vienna Action Plan, the Tampere Conclusions and the scoreboard presented in March 2000, the European Commission is proposing a draft Council Directive on temporary protection in the event of a mass influx, based on solidarity between Member States.
This proposal is the result of previous attempts to reach an agreement among Member States on a temporary protection regime for the European Union (EU). The Commission states that this new proposal is "more than a mere formal Amsterdamisation of its old proposals for joint actions. In October 1998, Amnesty International issued its comments on the proposal for a Joint Action by the European Commission, of which this paper constitutes an update in the light of the Commissions proposal for a Directive on temporary protection.
Amnesty International is concerned that the adoption of a temporary protection regime may undermine the international regime for the protection of refugees, if it is not ensured that it contains sufficient safeguards to prevent abusing its use in practice. The Commission acknowledges this risk when it states in the explanatory memorandum that "temporary protection is sometimes criticised by those who consider that in certain Member States it is implemented as an instrument that can be used to circumvent or even evade the obligations flowing from the Geneva Convention. There is indeed a real risk that the situation could get out of control" (para. 2.3).
Amnesty International is concerned by the increasing tendency to abandon the internationally recognised regime for the protection of refugees (based on the UN Refugee Convention -ie the Geneva Convention as it is referred to in the proposal for a Directive) to resort to alternative protection regimes (such as temporary protection) which are not ruled by international law. As the Commission points out "although the Geneva Convention does not automatically exclude the grant of refugee status to entire groups of persons (prima facie), most Member States are reluctant to make use of this possibility" (para. 2.2).
The Commission states however, that "temporary protection in the event of a mass influx as proposed by the Commission is not a third form of protection, alongside refugee status on the basis of the Geneva Convention and subsidiary protection, the consequence of which would be to undermine the Member States international obligations". It goes further saying that a temporary protection regime is "a tool in the service of a common European asylum system and of the full operation of the Geneva Convention" by avoiding the collapse of the regular refugee protection regime (para. 1.4). While this is a necessary safeguard, the fact that alternative protection regimes may reaffirm their respect for the UN Refugee Convention and other international human rights instruments, does not constitute a sufficient guarantee that the actual implementation of its provisions will not obstruct refugees from been adequately protected in practice.
To date, temporary protection has been used as a tool by Member States in order to provide protection to specific categories of people without immediate recourse to individual refugee status determination procedures. An example of this was the response in spring 1999 by the EU, to the mass exodus of ethnic Albanians from Kosovo to neighbouring countries, primarily Albania and the Former Yugoslav Republic of Macedonia (FYROM). EU Member States participated in taking Kosovar refugees from Macedonia under the Humanitarian Evacuation Programme, giving a form of temporary refuge for varying lengths of time. Amnesty International would argue that in such situations, it would be preferable for States to engage in prima facie refugee status determination, under the framework of the UN Refugee Convention, as is common in many developing countries.
Some of the main concerns in relation to the implementation of a temporary protection regime are related to the fact that States may decide to resort to it when a mass exodus from a country of origin occurs (which does not automatically mean a mass influx into the EU), that there is no international standard for the cessation of this regime and that refugees given temporary refuge, normally receive a lower level of rights than those contained in the UN Refugee Convention.
Amnesty International reminds Member States that they have an international obligation to provide protection to refugees. In granting temporary protection, states may not have formally recognised refugees as Convention refugees. But the lack of a formal recognition does not make a person any less entitled to protection under international refugee law. As the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status explains, "He does not become a refugee because of recognition, but is recognised because he is a refugee."
The UN Refugee Convention does not distinguish between refugees who have been given an individual asylum determination and those who have been granted temporary protection, humanitarian status, or any other status under a States asylum policy.
Article 3 of the UN Refugee Convention provides that "the Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin." Refugees under temporary protection regimes must be protected by the rights guaranteed by the Convention -- most importantly the right not to be sent back to a territory where they risk serious human rights violations.
Amnesty International believes that international protection should not be ended for refugees until the conditions in the country of origin are demonstrated to have substantially and durably improved to the point where there is no risk of serious human rights violations against returnees. Refugees under a temporary protection regime must therefore be protected against a cessation of their status which may result in refoulement, which is a cause of concern due to the lack of an international standard for the withdrawal of temporary protection.
The international standard for the withdrawal of protection under international refugee law is the one established by the cessation clause contained in Article 1(C) of the UN Refugee Convention. As the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status explains "once a persons status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses. This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes - not of a fundamental character - in the situation prevailing in their country of origin" (para. 112). The UNHCR Handbook further states that "the cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status" (para. 116).
When, because of the large influx of refugees from a particular country, Member States opt to fulfil their legal obligation not to send back refugees by granting temporary protection outside their normal refugee protection systems, as temporary protection ends, these States must continue to abide by their obligations under international refugee and human rights law, including the principle of non-refoulement.
Amnesty International calls for any protection regime to conform to international refugee and human rights law and provide effective and durable protection from refoulement to the beneficiaries. It should ensure protection to those at risk of serious human rights violations either by a government or a non-governmental entity. Amnesty International opposes any measure that undermines the international system of protection for refugees as set out in the UN Refugee Convention and its Protocol, as well as other relevant international human rights and refugee protection standards and guidelines, such as the UNHCR Executive Committee Conclusions and the UNHCR Handbook on procedures and criteria for determining refugee status.
Amnesty International therefore calls for the following general principles to be expressly enshrined in an EC Directive on temporary protection:
II THE DRAFT DIRECTIVE
1. The establishment of minimum standards
Article 1 of the Commissions proposal states that it intends "to establish minimum standards for giving temporary protection" (italics added).
Amnesty International recalls that Member States have an international obligation to provide protection to refugees. In granting temporary protection, States may not have formally recognised refugees as Convention refugees. But the lack of a formal recognition does not make a person any less entitled to the protection of international refugee law. Refugees under temporary protection regimes must be protected by the rights guaranteed by the UN Refugee Convention -most importantly the right not to be sent back to a territory where their life or freedom would be in danger.
Temporary protection cannot be used as a tool to lower the standards of protection for refugees under international refugee law.
2. Definition of "mass influx"
Amnesty International notes that the proposal defines "mass influx" as the "arrival in the Community of a large number of displaced persons from third countries who are unable to return to their country of origin, who come from a specific country or geographical area" (Article 2d). However, the Commission itself points out in its comments to Article 2d (p. 14) that "except that the number of people must be substantial, it is impossible to quantify in advance precisely what constitutes a mass influx". Furthermore, the proposal stresses that this regime is to be implemented when there is a risk that "the asylum system will be unable to process this influx" (Article 2a).
Amnesty International is concerned by the absence of a precise definition of what constitutes a "mass influx" and asks that its existence be determined in consultation with UNHCR and other organisations concerned, in order to ensure that it cannot be abused and result in the undermining of the international regime for the protection of refugees.
The "risk" for the proper functioning of the asylum system must be real and not hypothetical, and should not be construed as a means to enact a temporary protection regime every time that a crisis arises anywhere in the world. A "mass exodus" from a given country cannot be automatically construed as constituting a "mass influx" into the EU. Amnesty International reaffirms that a temporary protection regime should only be implemented in situations where it is logistically impossible for States to engage in individual examinations of asylum requests of a particular group, due to the fact that refugees fleeing a particular country arrive within the EU in exceptionally great numbers and in a short period of time.
3. International refugee and human rights law as standards for the implementation of a temporary protection regime
Amnesty International welcomes the statement made in Article 3 that "temporary protection does not prejudge recognition of refugee status under the Geneva Convention" and that "Member States shall apply temporary protection with due respect for human rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950".
Amnesty International calls for Article 3 to refer not only to the UN Refugee Convention and to the European Convention on Human Rights, but also to other international human rights obligations, and specifically to the Conclusions of the Executive Committee of the UNHCR.
4. Establishment of a temporary protection regime
Article 5(2) of the proposal lays out the criteria on which the Council Decision establishing the existence of a mass influx giving rise to temporary protection has to be based. Amnesty International is concerned that the criteria on which the Council Decision is based are rather vague, may be widely interpreted and give rise to abuse in the establishment of the existence of a mass influx (see above).
In particular, Article 5, paragraph 2(b) refers to the "potential for emergency aid and action on the ground or the inadequacy of such measures". Amnesty International believes that any system of reception in the region should not undermine the right of refugees to protection and particularly, the right of an individual to seek and enjoy asylum. Any concept of reception in the region must take into account the international responsibility for the protection of refugees so that a regional approach to refugee protection does not undermine efforts carried out at the international level for the protection of refugees world-wide.
Amnesty International welcomes the inclusion in the proposal that one of the criteria for the Council Decision is based on information received by UNHCR and other organisations concerned. Amnesty International calls for a reinforcement of this provision by establishing an automatic meaningful consultation process with UNHCR and NGOs that ensures that the information provided is properly taken into consideration.
5. Extension of temporary protection to other categories of persons
Article 7 establishes that temporary protection may be extended to additional categories of persons not included in the Council Decision. The Commission explains that this provision allows Member States "to provide protection to a further group of people not covered by the scope of the Council decision".
As referred to in 2.5 of the Explanatory Memorandum, during the Kosovo conflict, there were variations between national measures relating to Kosovars evacuated on humanitarian grounds, asylumseekers and Kosovars already on the territory before the evacuations began. Amnesty International recalls that in some EU countries, ethnic Albanians from Kosovo who had applied for asylum before the Humanitarian Evacuation Programme, had the determination on their claim suspended and were given the same status as those arriving under the HEP.
Amnesty International calls for this provision to be worded to include a safeguard ensuring that it is not applied to restrict the rights of refugees under international refugee law by excluding them from the general refugee protection regime.
6. Obligations of Member States towards persons enjoying temporary protection
Articles 8-15 state the rights of the beneficiaries of temporary protection. As it has been stated above, in granting temporary protection, states may not have formally recognised refugees as Convention refugees, but the lack of a formal recognition does not make a person any less entitled to the protection of international refugee law. Therefore, the Directive should ensure that refugees under temporary protection regimes are protected by the rights guaranteed by the UN Refugee Convention.
Article 8.3 imposes an obligation on Member States to provide persons admitted to their territory for the purposes of temporary protection "with every facility for obtaining the necessary visas, including transit visas". Amnesty International calls for a visa requirement to be lifted in such situations as the imposition of a visa regime may constitute an obstacle for individuals seeking protection. Any restrictions on entry such as visa requirements, sanctions on airlines or other forms of transport or other similar restrictive measures, should not obstruct access to protection for refugees.
7. Access to the asylum procedure in the context of temporary protection
Amnesty International welcomes the inclusion in Article 16 that those enjoying temporary protection shall be guaranteed access to the procedure for determining refugee status if they so wish and the mention in Article 3 that temporary protection does not prejudge recognition of refugee status under the UN Refugee Convention. A temporary protection regime should not deprive anyone of access to a refugee determination procedure to exercise their legitimate right to an individual examination of their asylum claim.
Amnesty International calls for this provision to ensure access not only to a procedure for determining refugee status, but also to other relevant procedures which may be in place to ensure that individuals are not sent back to countries of persecution, regardless the formal status that they may provide.
With reference to the criteria and mechanisms for deciding which Member State is responsible for considering asylum applications (Article 17), Amnesty International would refer to its response to the Commissions working papers on asylum procedures and on the revision of the Dublin Convention.
8. Return and measures after temporary protection (Articles 19-23)
Amnesty International recommends that as temporary protection ends, Member States must continue to abide by their obligations under international refugee and human rights law, including the obligation to provide effective and durable protection from refoulement.
Even when the conditions that gave rise to refugee status have ceased to exit, the UN Refugee Convention provides for the protection of special categories of persons who cannot reasonably be expected to return where compelling reasons exist, for example, ex-detainees, victims of extreme violence and trauma, and particular attention should be paid to victims of rape and sexual violence. It is vital that internationally agreed human rights and refugee standards are complied with. Amnesty International calls for the same standards to apply after the termination of temporary protection.
The proposal for a Directive acknowledges the link between temporary protection and solidarity, or responsibility sharing, which Amnesty International welcomes providing that it is founded upon the fundamental rights and freedoms of refugees and asylum seekers and that it strengthens the international protection of refugees. The organisation recommends that solidarity be international and extend beyond the limits of the EU, as the establishment of any responsibility-sharing mechanism must take into account the international responsibility for the protection of refugees so that a regional approach to refugee protection does not undermine efforts carried out at the international level for the protection of refugees world-wide.
With reference to the transfer of residence of persons enjoying temporary protection from one Member State to another (Article 26), it is stated that the beneficiaries consent shall be obtained. Amnesty International would add that family unity must be respected.
10. Special Provisions
Amnesty International calls for any provisions allowing Member States to exclude individuals from a temporary protection regime (Article 29), be in accordance with the exclusion clauses of the UN Refugee Convention particularly noting that many of those granted temporary protection may be entitled to Convention refugee status.
In addition, compliance with obligations under other international human rights law provisions should be adhered to, such as the UN Convention Against Torture and Article 3 of the European Convention on Human Rights which offer protection regardless of the nature of the activities conducted by the individual when the existence of a real risk of treatment contrary to Article 3 of both treaties can be established. Safeguards developed by the European Court of Justice in similar cases should also be ensured.