Statement by the European Council on Refugees and Exiles (ECRE) to the Round Table on Illegal Immigration


Brussels, 30 November 2001



The European Council on Refugees and Exiles (ECRE) is an umbrella organisation for co-operation between European non-governmental organisations concerned with asylum seekers and refugees.  ECRE campaigns on behalf of its pan-European membership for humane and fair asylum policies.  ECRE is concerned with the needs of individuals who seek protection in Europe and as such is concerned with the impact of carriers sanctions legislation on refugee protection.


ECRE believes that carrier sanctions legislation threatens to undermine basic principles of refugee protection, the operation of the asylum process, procedural guarantees of due process and international co-operation to resolve refugee problems in full respect for the human rights of the individuals involved.  While States have a legitimate interest in controlling irregular migration and a right to do so through border control measures, they are in breach of their international legal obligations towards refugees where such measures hinder the access of refugees to countries of asylum and, as a result, to protection from persecution.


States are legally bound by a number of international treaties that ensure the right of persons who risk persecution to leave their country and seek protection in another.  The right to seek asylum is enshrined in the Universal Declaration on Human Rights and a plethora of other international treaties and agreements.[1]  The right to asylum is further guaranteed by the Charter of Fundamental Rights of the European Union.  It overlaps with and complements the right to leave any country, including one’s own which is also provided for in international law.[2]  European Union Heads of State, meeting in Tampere in Finland in 1999, agreed that a common EU asylum policy would be based on principles which “offer guarantees to those who seek protection in or access to the European Union”.  It further stated that “it would be in contradiction with Europe’s traditions to deny [such] freedom to those whose circumstances lead them justifiably to seek access to our territory.”


These rights are infringed by carrier sanctions legislation.  By requiring a refugee to obtain proper travel documentation before embarking on a journey of escape, governments in fact ignore the very problems which give rise to the need for refugee protection and, in effect, they deny the possibility of asylum to some refugees.


For many refugees any attempt to obtain the necessary documentation to travel legally would entail an unacceptable risk to their lives; many have to go into hiding to escape persecution; others do not have the luxury of time.  In a report by the Medical Foundation for the Care of Victims of Torture[3] entitled “Staying alive by accident: torture survivors from Turkey in the UK” of the 16 clients who had been granted refugee status by the time the report was written, only two had travelled on their own passports.  Six had used false passports, while four more had no travel documents.  A person fleeing persecution must often resort, for example, to forged passports, both to leave the country of origin and to obtain admission elsewhere.


Governments recognised that this was true when drafting the 1951 Refugee Convention.[4]  The Refugee Convention explicitly recognises that some refugees will have no option but to use illegal means of entry and prohibits States from imposing penalties on refugees on account of their illegal entry or presence.   Insofar as carrier sanctions legislation is designed to prevent irregular or illegal entry, it is broadly inconsistent with Article 31, which accepts that there is justification for illegal entry by refugees.


Visa requirements coupled with carrier sanctions can prevent people, who cannot obtain documentation without putting themselves at increased risk of persecution, from fleeing their country. The European Union common visa list[5] adopted on 15 March 2001 fails to reflect the repeated plea of the United Nations High Commissioner for Refugees for visas not to be imposed on countries in which there are civil wars, generalised violence or widespread human rights abuse. It includes, for example, countries such as Afghanistan, Sri Lanka and Iraq.  A visa policy is a legitimate tool for controlling immigration, but when it is directed against asylum seekers, it is in flagrant contradiction with the principle of asylum and the above-mentioned international human rights legislation.  The problem is obvious.  As mentioned above, refugees are, in many cases, unable to apply for a visa without putting themselves at serious risk.  Even where they are able to apply, whilst one can apply for a visa for reasons of business, study or tourism, it is a well-known fact that one cannot generally apply on the ground of a need for protection.  Denying asylum seekers the means to enter a country of asylum legally not only logically forces asylum seekers to resort to illegal and clandestine entry, but surely results in a certain number of persons in fear of persecution being contained inside their countries of origin in breach of the Universal Declaration of Human Rights.


The EU visa and carrier sanctions policy not only acts as a deterrent and barrier to potential asylum seekers, but leads to an increasing reliance on illegal entry. Desperate people who have no legal means of reaching sanctuary will, inevitably, look for other ways.  If the objective of carriers sanctions is to prevent illegal entry then its effectiveness must be questioned.   Carrier sanctions play into the hands of those who develop, for profit, operations to evade such controls (e.g. false documentation, traffickers, smugglers, networks of carriers, exploitation of persons once they reach their destination).  The result is that those fleeing persecution may be forced to rely on such smugglers, traffickers or other clandestine methods, in order to flee.


The EU Directive on carriers sanctions was formally adopted on 28 June 2001.[6]  The prospect of fines of at least Euro 3000 introduced in the carriers sanctions Directive will have the – intended - effect of making transport carriers more vigilant for stowaways and passengers without proper documents. The Directive offers only the weakest of safeguards for refugee protection.  Article 4 (2) of the Directive states that action taken under the Directive should be “without prejudice to Member States’ obligations in cases where a third country national seeks international protection” - little consolation to a survivor of torture who has been refused permission to board a carrier because she is travelling on a forged passport.


Transport carriers have been forced to take on an immigration role due to the imposition of fines by States on carriers transporting passengers who do not possess the necessary documentation for entry.  It is impossible to be precise about the number of refugees who are denied escape due to stringent checks by transport companies, but clearly it represents an ever-increasing barrier.


As was stated in the 1998 report, The Cost of Survival – The Trafficking of Refugees to the UK, everybody loses from the present situation.  “The carriers pay liability fines and have to train their own staff as quasi-immigration officers; the government spends many millions of pounds on an international enforcement agenda which cannot (and should not) stop refugees from fleeing persecution; and the refugees pay the highest price of all.”




-       Legislation which has the effect, intended or otherwise, of hindering the access of refugees both to asylum procedures and, as a result, asylum from persecution, is clearly inconsistent with the international right of all persons to seek and enjoy asylum from persecution.


-       Where such legislation prevents persons with a well founded fear of persecution, for reasons recognised as valid under international law, from making use of what could be their only means of fleeing their country, and from reaching the territory of asylum countries, this amounts to an unacceptable limitation on the right to seek asylum and the complementary right to leave any country, including one’s own.


-       Any State which is bound by the 1951 Refugee Convention has to perform its obligations under the Convention in good faith and in accordance with the objectives and purposes of the Convention.  An exercise of power by the State, although legitimate on its face, which in fact frustrates the fundamental object and purposes of the Refugee Convention – that of protection - could well amount to a broad breach of international obligations under the Convention.


19 November 2001


[1] The American Convention on Human Rights, the African Charter on Human and People’s Rights, the United Nations Declaration on Territorial Asylum and the Council of Europe Declaration on Territorial Asylum.

[2] Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

[3] The Medical Foundation for the Care of Victims of Torture is a London-based human rights organisation that receives more than 5,000 referrals of survivors of torture and organised violence annually from approximately 90 countries.

[4] Convention relating to the Status of Refugees, 1951

[5] Council Regulation listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, ((EC) No 539/2001), 15 March 2001 

[6] Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985