1 June 2001
UNHCR Public Information Section
Earlier
this week, in Brussels, the European Union Ministers of Justice and Home
Affairs (JHA) took an important step forward in the process of harmonising asylum
in the European Union, by agreeing on a European regime of temporary protection
in the event of a mass influx of displaced persons. UNHCR is in agreement with
almost all aspects of this Directive. The JHA Council of Ministers also agreed
on measures aimed at controlling undocumented arrivals into the European Union
by imposing stiff sanctions on individuals and groups facilitating such
arrivals. While UNHCR appreciates the need to prevent and combat human
smuggling and supports positive initiatives in this respect, it is essential
that any such measures be administered with sensitivity and flexibility, lest
they inadvertently obstruct refugees and asylum-seekers from reaching safety.
The
Directive on temporary protection adopted by the JHA Ministers on Monday is the
first substantive legal instrument of the developing common European asylum
system. The Amsterdam Treaty that came into force in May 1999 gives the EU five
years to develop common asylum legislation binding on its Member States.
The
Directive on temporary protection is a major step towards a harmonised
treatment of refugees and other persons arriving in a mass influx and in need
of international protection. UNHCR is in agreement with almost all aspects of
the Directive. In particular, UNHCR welcomes the recognition that temporary
protection is not an alternative to refugee status under the 1951 Convention,
but only a practical device aimed at meeting urgent protection needs during a
mass influx situation until the individuals concerned have their asylum
requests determined on a case-by-case basis.
The Directive states that
UNHCR must be consulted on the establishment, implementation and termination of
the regime of temporary protection. UNHCR welcomes the incorporation of a
number of basic protection principles in the Directive, such as the
reunification of separated family members. The Directive also provides for basic standards of treatment
and affirms the essential role of solidarity among Member States in addressing the
problems posed by large-scale influxes.
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The JHA Council also reached
agreement on two legislative initiatives introduced by the French EU Presidency
last year. These measures are
aimed at preventing and counteracting the unlawful entry or residence in the
European Union of third-country nationals by imposing a maximum jail term of
eight years or more for individuals and groups who facilitate such illegal
entry. UNHCR fully supports the efforts of States in combating criminal and
organised smuggling of persons across international borders.
UNHCR’s
concern, though, is that there may be many genuine asylum-seekers who have no
viable way of reaching safety without resorting to the services of smugglers.
Therefore, the legislative measures adopted by the EU Ministers need to strike
a proper balance between the repression of criminal smuggling and the
protection of humanitarian interests and values. This was achieved at the
global level with the adoption in Palermo in December 2000 of the United
Nations Convention against Transnational Organised Crime and its two additional
Protocols. One principal problem with the Directive adopted by the EU Ministers
is that it defines the offence of migrant smuggling differently from the
Palermo Protocol. The inclusion of a “humanitarian clause” –
which is not even mandatory but left to the discretion of each Member State
– does not, in UNHCR’s view, sufficiently address the protection
needs of refugees or the inconsistency between EU legislation and international
law.
Carrier
sanctions
Agreement was also reached at the JHA Council on harmonising carrier sanctions – the term used to describe penalties against transport companies for carrying undocumented or inadequately documented persons into an EU country. UNHCR’s position is that companies should not be penalised for transporting people who are seeking international protection from persecution. A refugee may be forced to resort to forged documents in order to escape to safety. In fact, cases in which a refugee can request and obtain a national passport from the same authorities that are the cause of the refugee’s fear of persecution are the exception rather than the rule. Even if a refugee is able to obtain a national passport surreptitiously, securing the entry visa of an EU country is virtually outside the realm of possibilities. Therefore, the adoption of such sanctions without adequate exemptions for carriers in the case of refugees in need of international protection risks undermining the refugees’ ability to seek and enjoy asylum.
ENDS