Taking stock of the
harmonisation process at the end of the Danish Presidency:
The European Union
must make decisions to preserve the integrity of its asylum policies
On Wednesday 18
December, the Danish Presidency provisionally published a document taking stock
of the goals and results during its term of mandate (http://www.eu2002.dk). Chapter 2, on Freedom,
Security and Justice elaborates on the progress achieved in the fields of
asylum and migration. The Council has only managed to find political agreement
on the revised version of an already existing instrument, namely the Dublin
Convention on the determination of the Member State responsible to examine an
asylum application. On the other hand, 17 projects for the control of the
European Union’s external borders and the fight against illegal
immigration have been launched. However, instruments aiming at the integration
of refugees and other third country nationals in the European Union, such as
family reunification and the status of long term residents, have been dropped
of the decision making agenda due to lack of progress.
ECRE is concerned
by the lack of progress by the Council on refugee protection instruments, which
contrasts with the progress that has been achieved in the development of
migration control measures and urges the Council to address the failures of the
past months of negotiations and to adopt decisions leading to the establishment
of a Common European Asylum System that is human rights orientated and based on
best national practice.
Adoption of the Reception Conditions
Directive
The Justice and
Home Affairs Council on 19 December has just adopted the Directive laying
down minimum standards for the reception of applicants for asylum in Member
States, following
political agreement last April. This adoption constitutes a significant
milestone in the path towards the development of a Common European Asylum
System in so far it provides refugees with certain minimum benefits (such as
housing or health care) that should lead in some Member States to the
improvement of reception conditions during the period when their application is
being examined.
The European
Council on Refugees and Exiles (ECRE) is concerned however that the
negotiations by the Council had been reopened in provisions that had already
found political agreement in April, with the result of further watering down
the standards originally proposed by the Commission.
Member States are
allowed wide discretion in the implementation of certain crucial provisions,
such as access to employment and access to the benefits enshrined in the
Directive. According to the final version of the Directive, Member States
retain the right to establish unilaterally whether asylum seekers will be
allowed to work during the time when their protection claim is being examined,
even if such examination is delayed longer than a year for reasons not
attributed to the applicants themselves. Furthermore, Member States may decide
to refuse access to benefits such as health care, housing, and education for
children, in cases where the asylum claim has not been presented as soon as
possible after arrival. This provision fails to take into account the fact that
asylum seekers are often unaware of the legal systems in their host country or
may feel uncertain and want to seek advice from refugee assisting organisations
that can help them to present their claims.
The Council should
develop a harmonised approach to the benefits for asylum seekers based on
international standards and best national practice. Instead, it allows Member
States to maintain different national policies that in some cases fall short of
the current standard of reception in other Member States. ECRE reminds Member
States that the standards included in the Reception Directive are only minimum
and that therefore they are not obliged to give up on higher standards than
those enshrined in the Directive.
Taking stock of the harmonisation process
But where does the
harmonisation process of asylum policies stand today? At the beginning of the
Danish Presidency ECRE put forward various recommendations in its Memorandum to
the Presidency, leading to the development of an asylum policy for the European
Union that is human rights orientated. Unfortunately, the ambitious Presidency
programme to move forward in the adoption of the different instruments that
lead to the establishment of a Common European Asylum and Migration System has
so far not materialised.
ECRE therefore
calls on the European Union to live up to its commitment to establish a Common
European Asylum System that offers guarantees to those who seek protection in
or access to the European Union. The Council of the European Union should
finally agree on the protection instruments that are at its table, ensuring
that their content is not only formally, but most importantly, effectively
respectful of international obligations towards refugees and other persons in
need of international protection. If it doesn’t, Member States will lose
credibility in their repeatedly expressed commitment to support, promote and
protect human rights within its borders and in the world.
Progress
towards the establishment of a Common European Asylum System in accordance with
the Tampere commitments must receive the support of all Member States
ECRE notes with
concern that despite the progress achieved in the past years, such as the
presentation by the Commission of all legislative proposals, the establishment
of the European Refugee Fund and an increasing consultation on these matters
with relevant NGOs, progress is jeopardised by the lack of agreement on the
issues under negotiation and by the reopening of negotiations in areas that had
already found political commitment. Only less than two years away from the deadline
of May 2004 established by the Treaty of Amsterdam, the Council has not yet
adopted any but two of the refugee protection measures in the Treaty of
Amsterdam: temporary protection in situations of mass influx and reception
conditions for asylum seekers. Yet, the core elements of a Common European
Asylum System as defined by the Tampere European Council in October 1999 remain
to be adopted. Furthermore, other most important instruments for the
integration of refugees in the European Union, such as family reunification and
the status of long-term residents have not even progressed to the level of
political decisions, and have recently been dropped the agenda of the 19
December JHA Council in light of this lack of progress.
This contrasts
with the progress that has been achieved in the development of migration
control measures. The JHA Council at its meeting of 28-29 November adopted a
number of measures to combat illegal immigration, such as the Directive and the
Framework Decision defining and penalising the facilitation of unauthorised
entry, movement and residence of third country nationals in the territory of
the European Union. Despite the fact that International Law prevents the
punishment of refugees for their illegal presence in host States, the adopted
European Union measures allow for the criminal punishment (including
imprisonment) of relatives and others who offer advice and assistance to
refugees and other persons in need of international protection, even if they do
it for humanitarian reasons, rather than profit. The Council also adopted
mandates for the Commission to negotiate new readmission agreements with third
countries; a statement declaring a number of countries as safe third countries;
a Return Action Programme for the European Union; and a Return Plan for
Afghanistan (that it seeks to implement as soon as possible, even if the
conditions on the ground remain in parts of Afghanistan continue to be a cause
for concern and the safety of returnees can in no way be guaranteed).
These agreed
migration control measures add to the existing body of measures that have
already received a green light, such as the imposition of penalties on carriers
who bring undocumented persons into the European Union, the mutual recognition
of expulsion orders among Member States, action plans to combat illegal
immigration and to manage the external borders, as well as a list of countries
whose nationals need a visa to enter the European Union (which includes
countries in which there are civil wars, generalised violence or widespread
human rights abuse).
National
security concerns must not compromise the principles on which the Union is
founded, including democracy and human rights
Of particular
concern is the way in which the debate on national security plays an increasing
role in determining the protection framework for refugees in ways that may not
always be compatible with internationally agreed obligations of Member States.
The events of September 11th have cast a shadow on the European
Union’s discussions on asylum. This contradicts the European
Union’s stated position before the United Nations General Assembly in
October, regarding implementation of human rights instruments. There, the
Danish Presidency, on behalf of the European Union and the Central and Eastern
Europe associated countries, stated that “the obligation to respect human
rights is unconditional. Human rights belong to each and every person no matter
what he or she may have done, no matter what crime they may have or are
believed to have committed”.
National best practice must be at the heart
of the harmonisation process
While ECRE
realises that the process of harmonising complex asylum and migration
legislation among Member States with very different traditions and national
legal systems is a complex one, it also notes that these very same conditions
have so far not constituted an obstacle for the European Union to find common
agreement on an increasing number of measures intended to prevent access to its
borders and fight terrorism.
The Amsterdam
Treaty offers European Union Member States a golden opportunity to set
legislative standards which not only approximate current diverging national
asylum laws and practices but which also reflect existing best practice. It
also offers an important opportunity to establish a system of responsibility
sharing which will eventually go beyond the present boundaries of the European
Union and extend to the accessing countries in Central and Eastern Europe as
well as to other countries in the world as part of the European Union’s
external policies. Within this context it is regrettable that the Council, in
finding political agreement on the criteria to determine which Member State
shall be responsible to examine an asylum application, did not do so on the
basis of protection-orientated criteria, but rather on the basis of migration
control objectives. This does not constitute a system where the protection
responsibilities are truly shared.
The
European Union must address its responsibilities for refugee protection in its
dialogue with third countries
The Tampere Summit
clearly stated the commitment of the European Union to develop a comprehensive
approach to migration addressing political, human rights and development issues
in countries and regions of origin and transit. On the contrary, the
conclusions of the General Affairs Council (GAC) held on 18 November on
intensified cooperation on the management of migration flows with third
countries emphasise the operational measures to fight illegal immigration, while
paying very little attention to the reasons that force people to flee their
countries and seek protection elsewhere.
Future measures of
cooperation with third countries should aim at addressing the root causes of
voluntary and involuntary migration, including poverty reduction, protection of
human rights and promotion of democratic institutions. Member States need to
recognise the export value of its asylum and immigration policies and ensure
that common European Union asylum policies serve to strengthen the global
refugee protection system and responsibility sharing.
ECRE urges the Council of the European Union
to agree on measures for the protection of refugees
ECRE urges the
Council to address the failures of the past months of negotiations and find
agreement on all relevant aspects of a harmonised definition of refugee and of
other persons in need of international protection. Two other most important
instruments for the integration of refugees in the European Union, namely
family reunification and the status of long term residents should also find
agreement in the short term.
With political
courage and commitment, Member States still have it within their power to stay
true to the founding values of the European Union.
19 December 2002