Update on EU
asylum, migration and other related matters
January – December 2001
All
documents referred to in this paper are available upon request from RO
Brussels.
PRESIDENCY
15 Swedish
Presidency
1.1
In the asylum area, the Swedish Presidency managed to broker political
agreement on the draft Directive on Temporary Protection. Its priority on the
migration agenda, family reunion, did not materialise in the adoption of the
relevant Directive. The Presidency organised an informal Justice and Home Affairs
Council in early February to discuss inter alia the process of harmonising asylum policy and the Commission
proposals for the second stage of asylum harmonisation as laid down in its
November 2000 Communication. It invited the High Commissioner to address this
informal Council.
15.1 During the Swedish
Presidency, the Schengen Implementation agreement entered into force in the
Nordic countries. A Community Regulation including a common list of countries
where a visa is required to enter any EU Member Sates, as well as a list of
visa-exempt countries was adopted (Romania would remain under review until end
of the year). Political agreement was reached on a draft Directive aimed at
harmonising Member States' carriers liability laws, as well as on EU/EC legal
instruments aimed at harmonising and strengthening Member States'
anti-smuggling laws. The
Presidency put special emphasis on the need to improve the exchange and
analysis of migration and asylum data and devoted a special SCIFA and expert
meeting to the issue in early April.
Generally, it took
seriously the need to review the working methods in justice and home affairs
particularly in Third Pillar issues (co-operation in penal law and police
matters) which culminated in the adoption of the "Haga Slott"
conclusions.
15.2As for the
work of the High Level Working Group on Migration and Asylum, the Swedish
Presidency undertook strenuous efforts to take the implementation of its Action
Plans decisively forward, yet was faced with a number of political, technical
and institutional obstacles. Nevertheless, dialogue with countries of origin
and transit, and the co-ordination between conflict prevention (a Swedish
Priority as part of the Common Foreign and Security Policy), development and
migration policy measures were strengthened. The Presidency was also supportive
of the submission of proposals by international organisations, including UNHCR,
aimed at implementing relevant parts of the HLWG Action Plans under the newly
established Commission budget line.
15.3The Swedish
Presidency was instrumental in raising the asylum issue of the enlargement
agenda. It organised the first Ministerial JHA Council session on the issue (as
well as on trafficking, the other priority item of the Presidency's agenda on
justice and home affairs in the enlargement context). During the Swedish
Presidency, the EU also started internal negotiations on the EU position on
chapter 24 (Justice and Home Affairs) and completed country reports on Estonia,
Malta and Poland in the Collective Evaluation Group. The Presidency organised a
Regional meeting of Justice and
Home Affairs Ministers in Sarajewo in March which ended with the adoption of a
Declaration putting the need for asylum capacity-building in the Western
Balkans upfront. During the Swedish Presidency, the regular Transatlantic EU-
USA Summit resulted in the adoption of a declaration which included a
substantial part on asylum and migration, a first of its kind.
15.4In addition
to the expert seminar on statistics, the Presidency organised a seminar on children in armed conflict and
displaced children during which
Commissioner Vitorino reaffirmed the Commission's undertaking to incorporate a
child rights perspective into any relevant forthcoming legislative proposal on
asylum and migration. Another seminar was organised on International
Protection within a Single Asylum Procedure (Norrkoping, 23/24 April 2001)
which was attended by Member States, candidate countries, delegations from the
USA and Canada, academics, a few
International Organisations among which UNHCR, and NGOs (ECRE, AI). Gender
issues, non state agents of persecution, subsidiary form of protection and the
single asylum procedure were the main subjects of discussion. Substantial
background papers and contributions were prepared by academics and experts. The
Seminar was meant to provide inputs into the Commission drafting of the directive on refugee definition and
subsidiary forms of protection which was issued on 12 September 2001. Outside
the context of the Presidency, but of relevance to the work of UNHCR, was
the Swedish seminar on Resettlement (Norrkoping, 25/26
April 2001).
16 Belgian
Presidency
2.1 During the Belgian
Presidency, taking place in the second half of 2001, no asylum or migration
instruments were adopted in Council. In the area of justice and home affairs,
this Presidency was marked by negotiations on policies and instruments in the
area of security and the fight against terrorism following the events of 11
September, the issue of migration (with a major Ministerial Conference as
highlight) and border control (inter alia High Impact operation at borders of
applicant countries). In the
asylum area, the Belgian Presidency undertook concerted efforts to take the
discussions on the draft Directive on asylum procedures forward by identifying
a number of major controversial
issues. It submitted a set of draft conclusions to the Council in an effort to
obtain Ministerial guidance to bring the negotiations on these key issues a
decisive step forward. In the migration area, the Presidency proposed a
compromise on the outstanding problems concerning the draft Directive on family
reunion but this met with a German
veto.
16.1In the area
of organised crime, terrorism and material criminal law generally the Belgian
Presidency managed to obtain
political agreement on a draft instrument combating human trafficking, and to
take the discussion on the principle of harmonising sanctions in criminal law
forward - by identifying the available options, including the setting of
minimum levels of maximum penalties. It also succeeded in adopting a number of
instruments strengthening Member States' co-operation in combating terrorism,
the freezing of assets of terrorist groups, and adopting a list of terrorist
organisations and individuals. In addition, the Presidency managed to obtain
agreement on the European arrest warrant which should simplify the surrender
mechanisms between Member States.
16.2The Belgian
Presidency was less successful in taking the work of the High Level Working
Group on Migration and Asylum forward. In a contribution to the Ministerial
Migration Conference it drew attention to continuing difficulties inter alia in
mainstreaming migration issues in development co-operation and in forging a
meaningful partnership with countries of origin and transit. It stressed the
risks of focusing too much on
repressive measures in capacity-building and neglecting the main roots of
migration and refugee flows. It suggested to further develop the notion of
co-development by enhancing the role of migrants themselves and improving the
co-ordination of initiatives, preferably to be undertaken in a decentralised
manner through civil society, the private sector, enterprises etc. First
decisions for Community funding of projects linked to the six Action Plans
under the newly established budget line were taken during the Belgian
Presidency.
2.4 A Presidency
Conference on Migration took place in Brussels on 16/17 October. This
event provided an opportunity for
an in-depth political debate on the issue and was instrumental in creating a
consensus around the ideas put forward by the Commission in its November 2000
Communication for the development of a European approach to migration. The
Conference was also meant as an important preparation for the Laeken Summit
tasked to review progress made in the implementation of the Tampere
milestones. The Conference focused
on four themes each of which was presented by a panel of Ministers from Member
States, candidate countries, third countries and international and European
organisations. These themes related to immigration policy and its management;
prospects for a common policy on economic migration; partnership with countries
of origin; and integration of migrants. While the Conference did not bring many
new insights, it was significant that so many Ministers attended this political
event and accepted that there is a clear need to develop a global, balanced,
transparent and effective approach to the management of migration. Without
wanting to create a fortress, delegates focused a lot on the illegal and
crime-related aspects of migratory flows, yet called to respect the values
underpinning States' asylum
systems and the need for
improving their implementation.
2.5 As regards
enlargement, the justice and home affairs chapter (no. 24) was opened with the
remaining candidate countries (except Romania and Turkey) and the negotiations
on this chapter were closed with Cyprus, Slovenia, Hungary, and the Czech
Republic by the end of the Presidency,
depriving UNHCR and other actors from a significant tool and lever to
improve the asylum standards,
policies and practices in candidate countries in the period 2002 and beyond.
The Presidency sent missions to Albania, Croatia, Bosnia and Herzegovina and
the FRY as a follow-up to the March Sarajewo Declaration in justice and home
affairs, and organised, together with the Commission, a meeting of senior
officials on migration through the Western Balkans in Belgrade on 30 November.
2.6 The Belgian
Presidency ended with the Laeken Summit which adopted a Declaration on the
future of the European Union, and agreed to the establishment of a Convention
to pave the way for Treaty reforms in 2004 (chaired by former French President
Giscard d'Estaing, assisted by Belgian and Italian ex-premiers Dehaene and
Amato). The Summit named officially the ten countries that are on the course to
join the EU in 2004 (all applicant countries except Romania, Bulgaria and
Turkey, as regards the latter still no date has been named for the start of
accession negotiations) and quarrelled over the seat of a number of new
European agencies without reaching
an agreement (including an Asylum and Migration Observatory for which Athens
was designated by the Presidency). An important agenda item for the Laeken Summit was the review of the
implementation of the Tampere Conclusions of 1999 in the area of justice and
home affairs. This exercise was meant to take stock of progress made and
provide the necessary impetus to the negotiations on number of important
dossiers, including in asylum and migration. The Laeken Summit reaffirmed the
commitment to the policy guidelines and objectives defined at the Tampere
Summit and the need to complete the common asylum and migration policy in the short term. It mentioned a
number of specific asylum and migration dossiers on which progress must be made
urgently. Yet the Summit stopped
short of commenting on the quality of this policy and the level of standards on
which it is to be built. The Conclusions, moreover, include some ambiguous
language on the nexus between protection principles and migration control,
including a reference to the need to take account of reception capacities of
host countries. In its emphasis on the external dimension of the EU's migration
policy, the Conclusions do not include a reference to the protection dimension
of migration management and to the need for truly comprehensive strategies,
including partnership with international organisations, which UNHCR had asked
for.
MAJOR POLITICAL
DEVELOPMENTS
17 The
fight against terrorism: the events of 11 September and their impact
3.1
Following the tragic events of 11 September, an exceptional Justice and Home
Affairs Council was called for on 20 September, followed by an Extraordinary
European Council (Heads of State and Government) on 21 September. The Justice
and Home Affairs Council adopted
an Action Plan of 40+ measures to
be taken in order to step up the fight against terrorism, aimed at
strengthening co-operation between magistrates, police and intelligence
services, both within the EU and
with third countries, including the US, strengthening border controls,
combating the financing of terrorism, establishing early warning systems etc.
3.2 One of
the measures listed was a call on the Commission to examine urgently the
relationship between safeguarding internal security and complying with
international protection obligations and instruments. The Commission issued a
working document on the issue on 5 December. UNHCR published its own views on the
relationship between asylum and terrorism the following day. Issues of special interest to the EU are
inter alia the possibilities for building in safeguards in admissibility
procedures in order to prevent abuse of the asylum channel by (potential) terrorists,
the proper application of the exclusion clauses and the problems caused by
excluded but non-removable cases. The Commission was also tasked with examining
the scope for the provisional application of the EU Temporary Protection
Directive in case special protection arrangement were required within the EU
for the Afghan caseload - yet the possibility of a large-scale influx did not
present itself.
3.3 Another
measure included in the 20 September JHA Council Action Plan was a call on the
Commission, in drawing up EU legislation, to fully consider the impact of any
legislative proposals on the fight against terrorism and organised crime. This
has led the Commission to review all its proposals for migration and asylum
legislation, the result of which has been laid down in above-mentioned working
document, calling for amending the asylum procedures proposal to allow for
accelerated processing of possibly excludable cases, or even the dismissal of
such asylum claims as inadmissible, strengthening of the provisions of
withdrawal or withholding of reception facilities in the draft Directive on
reception conditions, introducing art. 33 (2) in the draft Directive on the
refugee definition, and strengthening the references to public order in the
draft legislation on immigration (family reunion, long-term residence etc).
3.4 The exceptional
European Council meeting in Brussels on 21 September analysed the international
situation following the terrorist attacks in the US and agreed to take a number
of urgent measures, including the adoption by December of the two instruments
proposed by the Commission on 19 September on combating terrorism and the
European arrest warrant, and agreement on measures to block the financing of
terrorism. The Summit expressed the EU's full support for the international
coalition against terrorism, to include, in addition
to the US and EU, candidate countries, Russia and Arab and Muslim partners, as
well as the need for an in-depth political
dialogue with those countries and regions of the world in which terrorism comes
into being. The Summit called for a co-ordinated and inter-disciplinary
approach embracing all EU policies to fight the scourge of terrorism, yet this
always with due respect for
fundamental freedoms. The Summit also called for an urgent EU programme to
assist Afghan refugees and internally displaced persons. The subsequent Ghent
Summit (19 October) and Laeken Summit (14-15 December) again included
Conclusions on the fight against terrorism, reiterating the Union's commitment
to strengthening judicial and police co-operation in combating terrorism
effectively, and the need for continued humanitarian aid to Afghanistan and the
search for stability and durable solutions for refugees in and around
Afghanistan.
3.5 All
General Affairs (Foreign Ministers) Council, Finance Council and Justice and
Home Affairs Council meetings in November and December dealt with relevant
elements of the EU's comprehensive Action Plan to combat terrorism and address
the situation in and around Afghanistan. At the end of the year, the EU had
reached political agreement on a definition of terrorist acts and terrorist
groups and a harmonised approach to penalise terrorist acts, the European
arrest warrant which should facilitate surrender procedures between EU Member
States, no longer to be subject to verification of dual criminality, and an
instrument to freeze financial assets of terrorist groups and individuals,
based on an agreed list of terrorist organisations. The role of the Commission
had been to propose the text of instruments and of the European Parliament to
critically review the draft texts and suggest non-binding amendments.
3.6 During
this period there were also various meetings with delegations of the United
State at the level of Ministers (General Affairs Council), senior officials
(SCIFA) and working groups (CIREA, CIREFI). In the margin of the 6/7 December
JHA Council meeting, the EUROPOL Director and the US ambassador signed a
general co-operation agreement . There were also discussions on co-operation in
judi cial matters, immigration and asylum. The European Parliament adopted a
highly critical resolution asking for scrupulous respect for the Union's
adherence to fundamental rights and freedoms, and for its unconditional
opposition to the death penalty in extradition cases.
COUNCIL
MEETINGS
18 Justice
and Home Affairs Council meetings during 2001
4.1 In addition to the
informal meetings during the Swedish and Belgian Presidency and the special JHA
Council meetings aimed at inter alia violence around Summit meetings and
measures to combat terrorism, the "regular" JHA Ministerial Councils
discussed a number of instruments in asylum, migration, border management,
judicial co-operation and police co-operation, including those related to migrant
smuggling, human trafficking and other forms of organised crime. In late 2001,
EUROJUST, the counterpart of EUROPOL for co-operation between magistrates was
established in its provisional formation. The JHA Council reviewed regularly
the operation of new bodies, established following the Tampere Summit, such as
the Police Chiefs Task Force, the European Police College and Member States'
Security and Intelligence Services (to which is to be added in future a new
structure related to common border management to provide for shared training,
exchanges and co-ordination between services). The Council meetings were marked
by lack of progress in negotiations in the areas of asylum and migration and
continuing disagreement on harmonisation in criminal law for lack of mutual
recognition of Member States' jurisdictions. The JHA Council meetings reviewed
progress made in the enlargement context, both as regards formal negotiations
and regular evaluations and the orientation of assistance programmes.
4.2 The 15/16 March JHA Council adopted a
Framework Decision (Third Pillar instrument) on the status of victims in criminal proceedings.
Subsequent instruments combating migrant smuggling or human trafficking would
refer in its chapters on victim assistance and protection to this general
instrument. The Council discussed measures to address illegal transit migration
through the Balkan route, emphasising the need for greater EU co-ordination in
preventive action and the dispatching of police officers to assist border police
it the region. JHA Ministers met for the first time officially in Council with
their counterparts from candidate countries : various themes were addressed
among which alignment of visas
policy, the need to strengthen external border controls, judiciary and police
co-operation aimed at curbing illegal migration and stemming trafficking and
smuggling, and asylum and migration issues.
4.3 The 28/29 May JHA
Council
reached political agreement on the proposals on temporary protection, carrier
sanctions and migrant smuggling/trafficking (see below for more detail). JHA -
Ministers also approved a progress report on the work of the HLWG, to be
approved subsequently by Foreign Ministers at the June General Affairs Council.
Furthermore, they approved a set of Conclusions related to illegal transit
migration through the Western Balkans, inter alia aimed at the creation of a
network of national immigration liaison officers, to be posted in all the
countries of south-eastern European region, as well as a number of neighbouring
countries. Ministers approved a Directive (French initiative) on the mutual
recognition of decisions on the expulsion of third-country nationals (see
below). Ministers also adopted
Conclusions aimed at strengthening controls on minors at the external borders
of Member States . These Conclusions include a reference to raise awareness
among carriers and travel agents for the need to take measures to reduce the
increasing number of undocumented minor passengers. In addition, Ministers
adopted conclusions on common analysis and statistics, following a seminar
organised by the Presidency on 4 April. The Conclusions call for a Work Plan to be drawn up by
the Commission, including the publication of a public Annual Report and an
Action Plan on migration and asylum statistics in the EU, improved exchange and
consultations between Member
States and with international organisations (such as IGC and UNHCR), the
development of a network of statistical experts, and the adoption of Community
legislation in this area. Finally the Council adopted a Regulation on freedom
of movement within the EU during three months for persons in possession of a
long-stay visa, replacing Article 18 of the Schengen Agreement.
15.1 The 27/28
September JHA Council reviewed progress in negotiations on a number
of dossiers.
15.1.1 Family
reunion draft Directive: The Council discussed a Presidency compromise
addressing the remaining contentious issues (see below para 7.1) yet Ministers
did not reach agreement - delegations remained divided on the issue of
non-married couples and the age limit. Germany made a general reservation
stating that it cannot agree with any EU proposal before the situation at
national level has been clarified. As for the refugee-related provisions, these
would remain part of a separate chapter, yet any future decisions on the
definition of the family unit , eligible persons and time limits/conditions may
have their impact on the rules for the reunion of the refugee family unless
exemptions are being introduced or maintained.
15.1.2 The Council
also discussed the draft Directive on asylum procedures on the basis of a list
of questions presented by the Presidency. Ministers
agreed that the draft Directive would need review in at least the following
areas: a simplification of the appeal/review stage; a revision of the chapter
on the accelerated procedure in order to ensure that this procedure results in
quick, expeditious decisions; and a revision of the admissibility criteria.
Ministers remained divided over the question whether the Directive is to cover
border procedures, whether it
should cover also claims for subsidiary forms of protection, and whether or not
the suspensive effect of the appeal is to be maintained as a general principle
and in which situations it can be lifted.
15.1.3 The
Council reached political agreement on EC legislation (Framework Decision) to
combat trafficking in human beings. As regards the outstanding problem - the
harmonisation of penalties - the Council approved a proposal to establish the
maximum penalty at a minimum of 8 years.
15.1.4 Following
the example set during the Swedish Presidency, the second day of this Council
meeting was devoted to an exchange of views with counterparts from candidate
countries, this time focussing on the trafficking issue in detail. The joint
meeting adopted a list of 12 measures including the need to improve information
exchange, establishment of specialist cells, co-operation between police
forces, the need for amending and strengthening of legal provisions,
organisation of information campaigns to prevent trafficking, establishment of
programmes to assist victims, co-operation with NGOs and civil society and
improved measures to detect false documents.
15.2
The 16 November JHA Council was mainly devoted to review
progress made in preparing for a JHA instrument in strengthening judicial and
police cooperation to combat terrorism and for the adoption of the European
arrest warrant. This Council meeting also had an in-depth discussion on the
upcoming Laeken Summit review of the implementation of the Tampere Conclusions
on the basis of a Presidency note.
Ministers, in commenting this note, focussed particularly on the need to
improve the Union's capacity to manage migration flows, inter alia through
strengthened border controls, visa co-operation and Schengen co-ordination.
Member States, in introducing amendments to national asylum and immigration
laws, should aim at greater convergence with those of other Member States (the
Presidency's proposal to call at Laeken for a stand-still clause was rejected).
Judicial and police co-operation should be improved by making better use of
instruments and bodies. The Presidency proposals for improved use of the JHA
working methods (one JHA Council per month, focussing on less topics, and
limited to negotiations on legislative and policy drafts) were welcomed.
15.3.1 The 6/7
December JHA Council secured political agreement on the
Framework Decision on combating terrorism. It also adopted a Decision to create
EUROJUST, the network of magistrats and judges. Due to opposition by the
Italian Minister of Interior, no agreement could be reached on the European
arrest warrant at the Council meeting. However, the Italian veto was lifted in
the following days, prior to the Laeken Summit. The Framework Decision on the
fight against the sexual exploitation of children and child pornography could
not yet be adopted as a result of ongoing general discussions on the required
level of ambition in harmonising elements of Member States' criminal law
systems. No formal adoption could take place yet of the agreed instruments on
migrant smuggling (May 2001) and human trafficking (September 2001) as a result
of outstanding parliamentary scrutiny reservations and work by legal linguists.
15.1.1 The
Council also discussed a draft set of
Conclusions on the Asylum Procedures Directive which according to the
Presidency received approval from all delegations yet subsequently met with
opposition in COREPER. The status of these Conclusions was not clear by the end
of the year. They focus on the following issues: 1) the field of application
and structure of the directive: it should apply to requests for protection
lodged in Member States under the 1951 Geneva Convention. Two questions remain
open: the application of the directive to requests for asylum lodged at the
border of a Member State and the compulsory application of the directive to
other forms of protection; 2) the quality of the decision-making process for
examining requests for asylum: according to the Council conclusions, the future
instrument should notably guarantee: individual examination of each request for
asylum, correct information to the asylum-seeker, the possibility of conducting
a personal enquiry (with an interpreter if necessary), "reasonable"
legal assistance, the possibility of communicating with the UN High
Commissioner for Refugees, the protection of information contained in each
file, the exclusion of the detention of a person simply for reasons of
requesting asylum, special attention to the needs of vulnerable groups; 3) the
procedures (normal or accelerated), deadlines, number of appeals, nature and
power of appeals bodies and the
suspensive effect of appeals. It is in this latter area that delegations
reportedly still quarrel over what was actually agreed at Ministerial level
(particularly as regards suspensive effect of appeals in the regular vs.
accelerated procedure) and the status of these Conclusions therefore remains
uncertain.
15.1.2 The
Council decided that from 1 January 2002 on, Romanians will no longer need a
visa when wanting to visit Europe.
Romania was the only remaining candidate country whose nationals need a
visa for Europe. With the lifting of the requirement - and the subsequent
amendment of the Council Regulation - the EU wanted to reward the Romanian
efforts to combat illegal migration. This does not mean however that there
travel for Romanians in the EU is without restrictions: everyone wanting to
visit a EU Member State has to possess a hundred Euro for everyday that they
are planning to stay - a very high sum for the average Romanian, when a months
wage is little more than 150 Euro.
EUROPEAN COMMISSION -
DG JUSTICE AND HOME AFFAIRS
16 European Commission programme
5.1 During the year
2001, the Commission completed the draft legislative package in asylum. It
submitted proposals for legislative instruments as required by the Treaty, on
reception conditions for asylum-seekers (April 2001), on a successor instrument
to the Dublin Convention (July 2001) - preceded by an evaluation of Member
States' views on the implementation of the present Convention (April 2001) and
on the refugee definition and
subsidiary forms of protection (September 2001). The Commission continued
preparations for putting in place the EURODAC system (hampered in Council as a
result of French opposition to the preferred fingerprinting system) following
adoption of the EURODAC Regulation in December 2000. The Commission launched a call for proposal for funding
projects under the European Refugee Fund for 2002 either through Member States
or at Commission level.
5.2 In the migration
(admission) area, following the proposal for a Directive on Family Reunion in
1999 (amended in 2000), the Commission submitted a draft Directive on long-term
residence status in March 2001 and on admission for labour purposes in July
2001.
5.3 The Commission
negotiated EC readmission agreements with Hong Kong (concluded as a first of
its kind in November 2001) and Macao, Morocco and Sri Lanka. Negotiations for a
transit readmission agreement with Turkey (for Iraqi) were also prepared.
Similar negotiations with Pakistan and Russia appear to be put on hold.
5.4 The Commission
prepared a proposal for a Directive on short-term residence permits for victims
of trafficking who are prepared to co-operate with judicial and police
authorities for adoption in early 2002. It also worked towards the setting up
of co-operation mechanisms with the concerned authorities to combat illegal
immigration, migrant smuggling and human trafficking from China and the Western
Balkans.
5.5 Furthermore, the
Commission prepared legislative instruments in the area of the fight against
terrorism, extradition/surrender procedures (the European arrest warrant). As
referred to above, in early December, the Commission
approved a working paper aiming to strike a balance between improving internal
security in Europe after the 11 September events and protecting the rights of
refugees. The paper was prepared in response to the 20 September JHA Council
and will provide a basis for discussions among Member States, but the
Commission also sees it as contributing to the wider debate with civil society.
It is based on two main premises: 1) bona fide refugees and asylum seekers
should not become victims of the recent events; and 2) those committing or
supporting terrorism should not be able to access the territory of the EU
Member States.
5.6 The Commission also
submitted three important
Communications in the area of asylum and migration in 2001. In November
2001, it presented a progress report on the implementation of the first phase
instruments and recommendations on the establishment of an open co-ordination
mechanism in asylum. This Communication also focuses on the issue of
international protection vs. security concerns, the need for improved
collection, analysis and exchange of data, the external dimension of the EU
asylum policy, and in an annex it reviews the comments received to its November
2000 Communication on the second stage of harmonisation, towards a common
asylum procedure and uniform refugee status.
5.7 Earlier on, in July,
the Commission introduced the idea of an open co-ordination mechanism in the
area of migration in a separate
Communication. Such a mechanism should result in the adoption of multi-annual
guidelines together with a timetable and coupled with the drawing up of
National Action Plans in Member States to ensure the timely and thorough
implementation of Community legislation and policy at the national level.
Another objective of the mechanism is to guarantee coherence in the development
of the policies of Member. The proposal was heavily promoted by Commissioner
Vitorino during the October Migration Conference and the Belgian Presidency
also included it in its background evaluation document for the Laeken Summit.
However, Member States remain divided over the use of such a system in an area
where, in their view, existing Community instruments and mechanisms are
sufficient to monitor the implementation of Community legislation at national
level.
5.8 Also in November
2001, the Commission submitted a third Communication on combating illegal
immigration. In this document, the Commission focuses on six priority areas:
visa policy, information exchange,
border management, police co-operation, aliens law/criminal law, and
return/readmission policy. The
Communication provides policy guidelines and strategic options to strengthen
co-operation between Member States and to develop common approaches in these
areas. It focuses inter alia on
measures to combat irregular migration close to the source in regions of origin
through strengthened partnership with countries of origin and transit. It
promotes the development of the emerging network of liaison officers, joint
teams for border management (development of a European Border Guards corps),
joint police operations. The
policy proposals also include improvement in the quality of statistics and the
creation of a European Migration Observatory. Furthermore, the document
includes proposals aimed at strengthening sanctions against those facilitating
illegal immigration and/or undeclared work of illegal residents, and promotes the conclusion of Community
readmission agreements with third countries (a suggestion emphasised in the
Laeken Summit Conclusions, yet third countries remain fiercely opposed). In its Communication, the
Commission announces that it will
issue separate policy papers on a common return policy and a European Border Management System, as
well as a feasibility study on the creation of a European Visa Identification
System.
5.9 As regards the work
of the High Level Working Group in Migration and Asylum, the Commission adopted
the implementing framework for financing proposals submitted under the newly
created budget line in August 2001. It started preparations for a legal base
underpinning implementation of this new budgetary instrument and selected and
approved - with the blessing of the Member States - a number of proposals
submitted by Member States and international organisations - aimed at
implementing elements of the six Action Plans.
5.10 The Odysseus
programme came to an end by 1 January 2002. During its last year of operation a
considerable part of the funds were used for the Belgian Presidency High Impact
police operation for controls at the Union's future external borders, in
co-operation with EUROPOL, the Member States and applicant countries. The
Commission published a proposal for a successor programme in October 2001,
entitled a "Proposal for a Council Decision adopting an action program for
administrative co‑operation in the fields of external borders, visas,
asylum and immigration (ARGO)" aimed primarily at addressing Member States'
administrative needs.
5.11 The Commission
submitted its bi-annual update of its Scoreboard in justice and home affairs on
29 May and 26 October 2001. The latter issue was intended as a pre-Laeken
edition and went beyond the purely mechanical measuring of progress in terms of
the tabling and adoption (or non-adoption) of instruments. In its introduction
the Commission provides its own evaluation and analysis of work undertaken so
far, and includes a number of "political" messages on the need to
maintain the level of ambitions set at Tampere both in content and timetable.
The Commission also points at the need for Member States to inject a major dose
of political will in the deliberations on common instruments in asylum and
migration inter alia by making essential concessions during negotiations.
IMPLEMENTING THE
AMSTERDAM AGENDA
17 the Asylum
legislative agenda
Draft Directive on
asylum procedures, September 2000
6.1 The Draft
Directive on common minimum standards on procedures for granting or withdrawing
refugee status with a view inter alia to reducing the duration of asylum
procedures was presented in September 2000 by the Commission. As reported
above, the proposal has been the subjected of two Ministerial debates during
the Belgian Presidency, in an effort to give impetus to the negotiations at
technical level which have proven very difficult in a number of points. The
Laeken Summit has now asked the Commission to submit a modified proposal before
30 April 2002, which should take into account the results of the negotiations
in the Asylum Working Party and the guidelines adopted by the 6/7 December JHA
Council. Member States have made it clear they do not wish to adopt a detailed
Directive based on the level of standards as proposed by the Commission.
Substantive amendments will have to be made which will most probably represent
a lowering of protection standards.
Draft Directive on
reception conditions for asylum-seekers,
April 2001
6.2 The Commission presented a Draft Directive setting out
minimum standards on the reception of asylum applicants by EU Member States in
early April 2001. After a first reading of the instrument early September, the
Council Asylum Working Party met again in November to review some of the more
controversial elements of the text on the basis of a Presidency working
document including a revised version of some articles of the proposal and introducing
new ones. While most of the difficulties were solved, no agreement could be
reached on the three main controversial issues i.e. the scope of application
(whether or not the instrument should cover border procedures and whether or
not applicants for subsidiary protection should be covered), the right to freedom of movement and
the possibility for access to the labour market for asylum-seekers.
Particularly as regards access to the labour market there is no
movement in delegations' diametrically opposed positions. At the initiative of
the UK, the Presidency has proposed a new article referring to a 'financial
means test' which would provide for verifying the asylum seeker's resources so
that s/he can contribute accordingly
to the cost of his/her reception.
Draft Regulation Dublin
II, July 2001
6.3.1 Following an evaluation of the
operation of the present Convention, the Commission presented a proposal for a
Regulation laying down the criteria and mechanisms for determining the Member
States responsible for examining an asylum application lodged in one of the
Member States by a third country national in mid July 2001. The Council Asylum
Working Party undertook an extensive first reading of the text in its meeting
early October. A number of delegations
are opposed to the proposed definition of family members (for example whether
it should also encompass unmarried couples), the application of the Regulation
to cases where the original asylum request has been replaced by a request for
subsidiary protection, the right
of unaccompanied minors to be reunited with family members in another Member
State. Other delegations (mainly Southern European ones) are concerned with the
introduction of the new criteria basing responsibility for examining an asylum
request on knowingly tolerating the illegal presence of an applicant on its
territory for over 2 months ("Sangatte provision") or unknowingly
tolerating the stay of an applicant on its territory for longer than 6 months.
Italy has raised a general problem with the general approach based on the
responsibility for controlling entry into the common territory, whereas this
country wants to render the Member State responsible where the asylum
application has been lodged (a view shared with UNHCR and NGOs).
6.3.2 With the extension
of the Schengen acquis to the Nordic countries in March 2001, the Dublin
mechanism also became operational in Norway and Iceland through a parallel
arrangement reproducing the obligations and rights, as well as the allocation
criteria contained in the Dublin Convention and the EURODAC Regulation.
Draft
Directive on the refugee definition and subsidiary forms of protection,
September 2001
6.4
In mid-September the Commission presented its proposal for a Council Directive
laying down minimum standards for the qualification and status of third country
nationals and stateless persons as refugees, in accordance with the 1951
Convention relating to the status of refugees and the 1967 protocol, or as
persons who otherwise need international protection. With its proposal, the
Commission aims to set minimum standards for the status of applicants for
international protection as refugees or beneficiaries of subsidiary protection
status; ensure a minimum level of protection available in all Member States for
those who genuinely need international protection; and reduce disparities
between Member States' legislation and
practice as a first step towards full harmonisation. One of the positive
elements of the proposal is that it argues to provide refugee status for
victims of persecution inflicted by non-state agents or for gender-related
reasons. The proposal is expected to be reviewed in a first preliminary reading
during the Spanish Presidency which will also host a seminar on the concept of "international
protection" and some elements of the proposal in early January 2002.
6.5
The Commission proposal on minimum standards for the granting of temporary
protection to refugees arriving in
large-scale influx was negotiated intensely during the Swedish Presidency which
managed to reach agreement on the proposal at the May JHA Council. The text was
formally adopted on 20 July and subsequently published in the Official Journal
of 7 August 2001. Member States
must bring into force the laws necessary to comply with this directive by 31
December 2002 at the latest.
European Refugee Fund
(ERF), 2000-2005 (adopted September 2000)
6.6
Approved late 2000, the ERF was granted 216 millions Euro to be invested in
improving Member States refugee and asylum practices during a five year period.
In 2001, Member States selected on the basis of their respective situations and
priorities, proposals and projects for
the reception, integration and voluntary repatriation of persons
identified by the ERF. Project implementation started in Member States under
the 2000 and 2001 Programmes. The
Commission approved a selected number of proposals submitted by international
organisations and international NGOs under its Community facility (5 % of ERF
funds).
6.7 In November 2001,
the Commission presented a working paper analysing the use of certain
definitions and procedural concepts in the Commission proposals for asylum
legislation (minimum standards asylum procedure, minimum standards reception
conditions, minimum standards qualifying as refugee/beneficiary subsidiary
protection, Dublin II Regulation). This cross-reference exercise should guide
delegations in achieving the necessary coherence in the instruments as well as
assess the impact which some provisions in one instrument have on related
provisions in others. The document analyses the use of certain definitions in
view of the scope of application of the instruments (e.g. whether or not the
concept of "asylum-seeker" covers persons in search of other forms of
protection than Convention status;
"family member" - the Commission proposals in their present form
include a variety of definitions) and the use of procedural elements (e.g. where suspensive effect of appeal
is not granted in accelerated procedures, reception conditions may not have to
be provided etc) as well as other elements (such as applicability of the
various provisions at the border).
7.
The Migration legislative agenda
Draft Directive on
Family Reunification, December
1999 (modified October 2000)
7.1
Approval of the text was held up by disagreement over the minimum age of
children to be granted the right of family reunion, time limits / waiting
periods before reunited family members are entitled to
certain rights and above al the scope of application (i.e. whether or not and
how to include unmarried partners and direct ascendants and children of full
age). A Belgian Presidency compromise
(see above) was rejected by Germany, with a few other delegations also voicing
concern. The Laeken Summit has now called on the Commission to introduce a
modified proposal by 30 April 2002 latest. This modified proposal should go
further than the revised Commission draft of October 2000 and should take into
account efforts undertaken by the Swedish and Belgian Presidency to reach a
solution on the outstanding controversies. .
Draft
Directive on the status of long term third country nationals residents, March 2001
7.2 This Commission
proposal is aimed at harmonising conditions for the delivery of long-term
resident status and the enjoyment of accompanying rights - including the right
to free movement within the Union and to take up residence in another EU Member
State. The instrument covers the
situation of economic migrants and recognised refugees. According to the proposal aliens (including refugees)
who have been legally resident for an uninterrupted period of five years will
receive a ten-year residence permit, automatically renewable, and valid for the
whole of the EU. The permit/status and rights/benefits attached to it - i.a.
access to vocational training and employment - will be transferable if the
long-term residents moves to another EU Member State (with the exception of
access to social assistance).
Negotiations on this text have run into a number of difficulties,
particularly as regards the transferability of rights when moving to another
Member State. Negotiations will be pursued under the Spanish Presidency.
Directive on the
mutual recognition of decisions on the expulsion of third country nationals
(adopted May 2001)
7.3
The purpose of this French Presidency proposal was to accept recognition of an
expulsion order issued by a competent authority in one Member State by another
Member State if the expellee had meanwhile moved to that latter Member State.
Such mutual recognition is to be
limited to two cases : when a third country national is the subject of an
expulsion decision based on a serious and present threat to public order or to
national security or safety, or
where a third country national is the subject of an expulsion decision based on
a failure to comply with national rules on the entry or residence of aliens.
The Council Directive was approved on 28 May 2001 during the Swedish Presidency
and published in the Official Journal of 2 June 2001. Member States must bring
into force national laws complying with the provisions of this Directive no
later than 2 December 2002. The Directive shall be applied without prejudice to
the provisions of the Dublin Convention (or its successor instrument) and with
due respect for human rights and fundamental freedoms, including the right to
bring proceedings for a remedy against an expulsion order.
Directive
on Carriers Sanctions (supplementing the provisions of Article 26 of the
Convention implementing the Schengen Agreement) (adopted June 2001)
7.4.1
In September 2000, the (then) French Presidency introduced a proposal for a
Directive aimed at harmonising the penalties on carriers transporting
undocumented passengers. After intense and often difficult negotiations, the
Directive was adopted at the end of the Swedish Presidency on 28 June and
published in the Official Journal of 10 July 2001. Member States must take the necessary measures to comply
with the Directive not later than 11 February 2003. The Directive's aim at
harmonisation has been met only partially, by setting either maximum or minimum
levels of penalties. Member States may introduce additional penalties The
adoption of this Directive means that throughout the EU sanctions will be
applied (financial, economic etc) and that the principle is now codified in EC
law (this means that those countries which did not apply financial or economic penalties,
such as Sweden, are now obliged to introduce them in national law). The
Directive is without prejudice to Member States' obligations resulting from the
1951 Convention and in cases where
an undocumented alien seeks international protection, yet the relevant
provisions are formulated very generally and do not appear to ally concerns
voiced by UNHCR and NGOs that carriers will be asked to refuse access to
territory by those in need of protection yet improperly documented.
7.4.2. On 30 November
2001,
the transport industry, in co-operation with the European Commission,
invited regulators (Government
officials) and international organisations, including UNHCR, and
non-governmental organisations to a Round Table to discuss how the
Directive can be implemented
effectively, which degree of diligence is to be expected from the
carrier, and how implementation is to respect international
principles of refugee law. The event was very well attended and is expected to
be given follow-up in expert meetings.
Draft Directive on
conditions of entry and residence
of third‑country nationals for the purposes of paid employment and self‑employed
economic activity, July 2001
7.5
This Commission proposal is one of the legislative initiatives regarding common
admission policies in the European Union and offers a fairly flexible legal
framework to take account of differences in the evolution of the labour markets
yet to meet the demands already manifested by European employers while
respecting the rights of legal immigrants. A first reading took place during
the Belgian Presidency yet proper negotiations are to be held during the
Spanish Presidency and beyond. The initiative is of relevance to refugee policy
in so far opening legal channels for labour migration may help reducing the
pressures on States' asylum systems. Moreover, the provisions of the Directive
may apply to refugees recognised in third countries whose skills and experience
may be needed by EU Member States. The draft Directive stipulates that migrants,
including refugees, legally residing in EU Member States will be given priority
in fulfilling job vacancies over third country nationals from outside the EU.
8. The legislative agenda concerning
migrant smuggling and human trafficking
Draft
Directive defining the facilitation of unauthorised entry, movement and
residence, and for a Framework
Decision on the strengthening of
the penal framework to prevent the facilitation of unauthorised entry and
residence, September 2000
8.1 In September 2000,
the (then) French Presidency introduced a proposal to strengthen and harmonise
Member States' laws combating migrant smuggling. The proposal included a First
Pillar Directive to define the act of smuggling as facilitating illegal entry
and residence (a migration instrument), and a Third Pillar Framework Decision
to strengthen and harmonise the penalties (a criminal law instrument) .
Political agreement was reached on both instruments at the JHA Council of 28
May 2001, yet at the end of the reporting year the instruments were not yet
formally adopted due to continuing parliamentary scrutiny reservations and
thorough revision by legal linguists. During the negotiations UNHCR and NGOs
had called to align the text of these EC/EU legislative instruments to the
agreed language of the Protocol on migrant smuggling annexed to the UN
Convention on Trans-national Crime, adopted in Palermo in 2000. However, the
agreed text of the Directive includes a mere optional humanitarian clause
stipulating that "any Member State may decide, in accordance with national
law and practice, not to impose sanctions........for cases where the
aim........is to provide humanitarian assistance to the person concerned."
A reference to financial gain as the distinguishing element for labelling smuggling
a criminal act, was not preserved in relation to the facilitation of illegal
entry (only in regard to illegal residence). The Framework Decision aimed at -partially - harmonising the
level of sanctions against smuggling includes a provision stipulating that
sanctions shall be "without prejudice to the protection afforded to
refugees and asylum‑seekers in accordance with international refugee
standards", including the 1951 Convention/1967 Protocol.
Draft Framework
Decision on combating trafficking in human beings, December 2000
8.2 In December 2000,
the European Commission submitted a Third Pillar criminal law instrument
(Framework Decision) aimed at
harmonising Member States' legislation against human trafficking. Political
agreement on the text was reached at the 27/28 September JHA Council when a
compromise was found to the outstanding problem - harmonising criminal law
provisions - by adopting a minimum level of 8 years for maximum penalties (Germany, Austria and Denmark however
issued a Declaration stating that this compromise must not set a precedent for
future instruments harmonising criminal law legislation). The text was under
scrutiny by legal linguists at the end of the reporting year and needs to be
reviewed too by some national parliaments before it can be formally adopted in
2002. UNHCR and NGOs, as well as the European Parliament (see below) had asked
for strengthening the provisions on victim protection and assistance and the
inclusion of a savings clause - similar to the provisions of the Palermo
Protocol on human trafficking annexed to the UN Convention on Trans-National
Crime. However, these recommendations were not taken over by the Council,
arguing that with the adoption of the March 2001 Framework Decision on the
standing of victims in criminal proceedings and the forthcoming Commission
proposal for a temporary permit of stay for victims of trafficking who
co-operate with the authorities (see para. 5.4) the situation of victims of
trafficking is sufficiently covered.
OTHER EU INSTITUTIONS
9. European Parliament
9.1 During the reporting
year, the European Parliament adopted a number of reports amending draft
legislation in asylum and migration, as well as commenting on Commission
Communications and on more general developments in the construction of the area
of freedom, security and justice. The Parliament also organised a number of
hearings and other public events. Of particular interest to UNHCR and refugee
organisations were the parliamentary reports and amendments to the Commission
Directives on temporary protection (rapporteur Wiebenga, March 2001), and
minimum standards for asylum procedures (rapporteur Watson, ex-Schmitt,
September 2001). The European Parliament has also appointed rapporteurs on the
draft Directive on reception conditions (Hernandez Molar, who wants to
undertake a fact-finding mission
to selected Member States) and the
Dublin II Regulation (Marinho). In the migration area, Parliament was preparing
a commentary/list of amendments related to the draft Directive on long-term
residence (rapporteur Baroness Ludford) and a number of additional initiatives
not of immediate concern to UNHCR. Parliament adopted a number of welcome
amendments to the draft Directive on carrier sanctions to be followed by a
rejection of the proposal for political and institutional reasons (rapporteur
Kirkhope). Parliament did the same in regard to the draft Directive/Framework
Decision related to migration smuggling (rapporteur Ceyhun). As regards the
draft Framework Decision on human trafficking, Parliament adopted a list of
very useful amendments, clearly in line with the recommendations submitted by
UNHCR and NGOs (rapporteur Ms. Klamt) yet Parliament was equally unsuccessful
in convincing the Council to take these amendments on board.
9.2 The European
Parliament also adopted important commentaries on the Commission Communication
on a common asylum procedure/uniform status (rapporteur Robert Evans, October
2001) and the Commission Communication on a common immigration policy (rapporteur
Pirker, October 2001).
Economic and Social
Committee
10.1 This committee
which regroups the employers, workers and civil society has taken an increasing
interest in asylum and migration matters and has produced a number of very
helpful and well-researched reports commenting on draft asylum and migration
legislation and Commission Communications. During 2001, UNHCR was invited to a number of expert
meetings organised by the Committee on the Commission asylum Communication,
reception conditions and the refugee definition. Committee rapporteurs also
came to visit UNHCR, NGOs and others concerned. The Committee adopted reports
on inter alia the draft
legislation on asylum procedures, reception conditions, long-term residence
status, as well as on the Commission Communication on a common asylum procedure
/uniform status and the Communication on a common immigration policy.
Committee
of the Regions
11.1 As with
the Economic and Social Committee, this body also produced a few reports and
opinions on Commission initiatives in asylum and migration, including a useful
opinion on the draft Directive on reception conditions (to note that reception
facilities for asylum-seekers often are a decentralised responsibility at
regional level, so the Committee speaks with authority and from experience).
12.1 On 11 October 2001,
the European Court of Justice issued a ruling concerning access to social
security for stateless people and refugees who reside in a Member State. The
Court of Justice had been seized by the German Federal Court for social affairs
since Germany had refused to pay family allocations to refugees and stateless
people who were not in possession of the correct type of German residence
permit - but merely an authorisation to stay (given when one is granted the
’little asylum’ in Germany), thus excluding them from social
benefits. The question to the Court was to know whether or not these persons
could be assimilated to German nationals and citizens of the European Union in
order to enjoy the European social rights. The Court decided that stateless
persons and refugees could and should enjoy Community social security law, as
stipulated by Regulation 1408/71, however on condition that they move from one
member States to another and reside there - a right, however, that they cannot
yet exercise. Thus, the second conclusion of the Court has rendered its first
conclusion meaningless for refugees and stateless persons, unless the adoption
of the Directive on the rights of long-term residents will allow refugees and
stateless persons to exercise this
right in practice. Observers have
noted the emphasis the Court has placed on interpreting Regulation 1408/71 and
related Community law in light of Member States' international obligations.
COUNCIL FORA
High Level
Working Group on Migration and Asylum
13.1 The High
Level Working Group met on a monthly basis and as stated above was particularly
active during the Swedish Presidency. That Presidency issued a progress report
at the end of its term, whereas the Belgian Presidency produced a contribution
to the October Migration Conference.
In the first part of the year, the Swedish Presidency organised expert
meetings which were attended by international organisations (including UNHCR)
and non-governmental organisations. The Swedish Presidency also arranged for an
extended Troika mission to Albania, Sri Lanka, and invited a Turkish delegation to Stockholm. An informal
meeting was held in Rabat with the Moroccan authorities. An information session
was organised with candidate countries and consultations with the US, Canada,
Norway, Switzerland and Australia took also place.
13.2 During
the Belgian Presidency these consultations were continued, including a session
with candidate countries. Contacts
with the Sri Lankan, Turkish and Albanian authorities were stepped up where
required, including missions. Also, meetings at technical level were held with
Moroccan representatives.
13.3 The
outgoing Swedish chair of the HLWG addressed a meeting of the Third Track of
the Global Consultations on regional capacity-building in Cairo in early July.
There was continuing discussion on the desirability to widen the HLWG Action
Plan on Albania to the Western Balkan region. As for Afghanistan, the events following the terrorist
attacks of 11 September call for a thorough revision of this Action Plan .
13.4 The
Commission started implementing the newly created budget line and approved the
first set of submissions (10 MEURO in total) for 2001, including proposals
forwarded by international organisations such as UNHCR. A background note
explaining the Commission's priority areas for funding was issued by the
Commission in September.
CIREA
15.1 During the
Swedish Presidency, CIREA invited UNHCR for an exchange on the following
country situations: Iran, Afghanistan (in the presence of candidate
countries), Sri Lanka (in the
presence of the US and Canada). The biannual meeting of the second instance
bodies (courts, review bodies) was devoted to an exchange on the concept of
"refugie sur place" and new elements in renewed applications. UNHCR
participated in the discussions on
the first item. During the Belgian Presidency, UNHCR provided expert advise on
the situation in Turkey, and the issue of asylum and terrorism (the latter
during an exchange in which the US, Canada and candidate countries were also
present). UNHCR also participated in the meeting of the second instance bodies
which the Belgian Presidency focused on the relationship between the 1951 Convention and other
international human rights instruments, particularly the European Convention on
Human Rights. The discussion included a review of the (limited) jurisprudence of the Strasbourg Court of Human
Rights on the issue.
UNHCR AND
THE EUROPEAN UNION
50th
anniversary 1951 Convention- Global Consultations
15.1 During this
anniversary year of the 1951 Convention, the European Commission and EU Member
States actively participated in the various events organised within the
framework of the Global Consultations. EU Member States co-ordinated their
position in the deliberations around the Declaration which was adopted on the
12th of December (one of the issues on which the EU had voiced
strong views during the negotiations related to issue of a supervisory or review
mechanism which the EU could not support). The Belgian Minister of Interior
representing the Presidency delivered a supportive statement to the meeting of
all State parties on that day.
15.2 The Council
adopted an EU Declaration on the
50th anniversary on 28 July 2001 in which it reaffirmed "its
commitment to this unique instrument as the foundation of the international
regime for the protection of refugees" and recognised "the unique
mandate of UNHCR". The Declaration also makes helpful references to the Tampere
Conclusions, the absolute respect for the right to asylum and the work of
UNHCR.
15.3 In January,
UNHCR made a presentation to SCIFA on the global consultations. The
presentation put the consultations in a historical perspective, reviewed the
goals, the “track” structure and the work programme for the 2nd
and 3rd track. Subsequently, the European Commission prepared useful
notes on temporary protection and asylum systems/asylum procedures for relevant
meetings. The Commission and the Presidency also participated in some regional
meetings (Budapest, Cairo). It is expected that the Commission and the EU
Member States will ask to be closely involved in drawing up the Agenda for
Protection for adoption in ExCOM in 2002.
UNHCR commentaries
16.1 During the reporting year, UNHCR
published comments on the following draft instruments: Commission proposals on
asylum procedures (July), reception conditions (July), refugee
definition/subsidiary protection (November), long-term residence status
(September), as well as on the Commission Communication on the common asylum
procedure/uniform status (preliminary comments in January, full comments in
November) and the Commission Communication on a common immigration policy
(November). As regards the Dublin Convention, UNHCR published preliminary
comments in January, comments on the proposal for a Regulation to succeed the
Convention are due for January 2002. UNHCR joined the Office of the High
Commissioner for Human Rights in publishing a comment on the draft Framework Decision
on human trafficking. UNHCR had issued comments on the initiatives on migrant
smuggling, carrier sanctions, temporary protection, family reunion and the
European Refugee Fund in 2000.
Semestial Partnership
UNHCR - European Commission DG JHA
17.1 In mid-May, UNHCR
and the European Commission met in Brussels for their biannual senior level
meeting on asylum and refugees in the context of the Semestrial Partnership established on the basis of
the July 2000 exchange of letter between
UNHCR and the European Commission DG Justice and Home Affairs. The
meeting undertook a review of the legislative agenda, the work of the various
bodies, and the inputs required from UNHCR. The meeting also discussed the
Global Consultations and how these can best dovetail with the EU harmonisation
process (and vice-versa).
ENLARGEMENT
Enlargement
and the asylum agenda
18.1
With the arrival of the Liaison Officer in the EU Unit in April 2001, liaison
and lobbying efforts with the EU Institutions in regard to the asylum dimension
of the enlargement process have increased. Through various means (sharing of
background notes, regular meetings with responsible desks at the Commission DG
Enlargement) working contacts have been strengthened and systematised,
particularly in view of the preparations for the Regular Report and the
technical consultations between the Commission and the applicant countries on
asylum.
18.2
Over the summer of the reporting year, the justice and home affairs chapter
(24) of the EU acquis was opened for all candidate countries except for Romania
and Turkey. The EU issued its Common Position (non public document) for each of
the twelve countries on the basis of which official negotiations were started
with a first group of countries at the end of the Swedish Presidency and a
second group during the Belgian Presidency (see above). Negotiations with some
of the candidate countries on chapter 24 were closed by end of 2001 (Hungary,
Cyprus, Slovenia, Czech Republic, Estonia). Under this chapter, no transition period
is required as all criteria are supposed to be met and the level of
preparedness should be high enough to ensure an effective implementation of all
the JHA acquis right upon accession.
18.3 On 13 November , the EU Commission
published its regular reports on each of the candidate countries. It also
published a 2001 Strategy Paper reporting on progress for preparations to
membership and looking forward on ways how to further monitor and assist
candidate countries to reach an acceptable level of preparedness for
effectively implementing the acquis in all fields. The Goteborg European
Council marking the end of the Swedish Presidency indicated that accession
would be possible for up to ten new members by the end of 2003 so that they
will be able to participate in the EP 2004 elections (meaning that accession
negotiations should be completed by the end of 2002). This intention was
confirmed by the Laeken European Council at the end of 2001. In the present
phase of accession preparations, the focus has shifted to candidate
countries’ capacity to implement and enforce the acquis. For this reason
particular attention is given to candidates’ administrative and judicial
capacity. Together with the issuance of the Regular Reports, the Commission has
undertaken a review of the progress made in meeting the priorities of the 1999
Accession Partnership (which is the central pre accession strategy instrument).
This assessment has been used for the formulation of new priorities in the
revised Accession Partnerships which were due for adoption in Council in early
2002.
18.4 During the
reporting year, co-operation in justice and home affairs matters with candidate
countries has become increasingly important, particularly as regards border
management, combating organised crime, including human trafficking, and
terrorism. Asylum capacity-building has a less prominent place yet all
candidate countries have now benefited from EC assistance programmes in this
field (sometimes as part of a larger programme in migration, asylum and border
management, and often implemented under twinning arrangements with Member
States and a prominent advisory role for the local UNHCR office).
18.5 A further aspect of
the increasingly prominent role for candidate countries in the future of the European
architecture is their involvement (incl. Turkey) in the discussion of the
future of Europe, including the Convention which will prepare the way for the
next IGC.
18.6 On Cyprus, the
European Union has expressed repeatedly its regrets that a political agreement
over the unity of the island has not yet been reached. It has stated equally
often that, if a settlement has not been reached by the time accession becomes
a reality, the Council will take a decision on accession without the
reunification of the island being a pre condition (1999 Helsinki European
Council Conclusions).
18.7 Preparations for
launching a pre-accession strategy for Turkey progressed over 2001.
Turkey’s political and economic reforms have been welcomed by the EU.
However Turkey still needs to ensure in practice that these reforms are
effective especially with respect to human rights. No date for opening
accession negotiations with Turkey has been mentioned so far.
18.8
The Laeken Summit declared the enlargement process as "irreversible"
and named the ten countries which may be ready for accession in 2004 if
negotiations - to be conducted on individual merits and following separate
dynamics for each country - could be brought to a successful conclusion by end
of 2002. The efforts of Romania and Bulgaria were appreciated and these
countries were encouraged to continue their preparations for membership.
EXTERNAL
DIMENSION
19.1 During 2001,
Justice and home affairs co-operation between the EU and the Eastern European region
focused mainly on combating illegal immigration and international crime,
including human trafficking. With Russia, discussions were launched on the
possible conclusion of an EC readmission agreement and the exchange of
expertise in combating illegal immigration. An Action Plan on JHA matters with
Ukraine was prepared and adopted. The Commission (TACIS Unit at DG External
Relations) pproved a programme of 2 Million Euro for 2002/2003 for asylum
related projects in Ukraine, Moldova and Belarus.
19.2
Throughout the year, the EU (Commission and Swedish Presidency) showed interest
in the 1996 Geneva Conference Follow Up Activities (former CIS process) and its
related regional and sub regional activities. It participated in some regional
Seminars (Soderkoping in April 2001, Uzghorod in October 2001).
20.1 The EU attention to
this region increased in 2001, even before the 11 September events. The
Commission has suggested to undertake a joint UNHCR / EU needs assessment as a pre-condition for developing a
fair and efficient asylum system in each of the five Central Asian Republics.
The December 2001General Affairs Council reaffirmed the EU's commitment towards
this region and welcomed the region's support in the international coalition
against terrorism and for the transport of humanitarian aid to Afghanistan The
Council indicated a number of areas in which it wants to step up co-operation
with the region, including in justice and home affairs.
21.1 Whereas the EU is
still fully behind the objectives of the Stability Pact (SP) it proposed in
June 2001 a change in its working methods and a sharper focus on some of its
activities with less priority for others. The EU considered the Pact to have
reached a critical phase in mid-2001, which was exacerbated by the departure of
the Special Coordinator for the Pact by the end of 2001, and the rapid
development of the EC's own Stabilisation and Association Process. The EU
expressed concern at various intervals about the too many, scattered,
activities of the Pact and the risk of overlap and duplication of work being
undertaken in other fora.
Nevertheless the issues of refugee return and migration and asylum
capacity-building were among the positive elements of the Stability Pact's
programme for 2001 and have been considered priority issues also by the
Commission. Moreover, the Pact provides a framework within which the activities
of actors and donors can be developed, based on an agreed operational strategy and funded by
those who have a specific interest (including the EU - the Pact has no funding
of its own).
21.2 The Stabilisation
and Association Agreements (so far concluded with FYROM and Croatia, for
Albania such agreement is foreseen for 2002) include a significant JHA chapter (with
provisions on asylum). The Stabilisation and Association Process, for which the
SAA agreements provide the legal basis, remained the main vehicle for the
Commission to rehabilitate and develop the region and bring it ultimately in
the Euro‑Atlantic structures ‑ the Stability Pact provides a
framework for co-operation with other donors and political actors in this
exercise.
21.3 The CARDS programme
was adopted in 2001, including a separate JHA programme prioritising the
sustainable development of effectively functioning JHA institutions
particularly those responsible for border management, police co-operation,
controlling illegal immigration, visa policy, document security. Asylum system
development (as envisaged in the SP Migration and Asylum Initiative) should
also receive Commission support and CARDS funding, yet to a lesser extent than
the mentioned control measures.
21.4 As reported above,
justice and home affairs received higher priority in Commission and Presidency
activity inter alia with the convening of a Regional Conference in Sarajevo at
the end of March and a subsequent meeting of senior officials in Belgrade at
the end of November (see above). Asylum and migration matters were placed high
on the agenda of these meetings in order to ensure a balance to
protection/admission and control measures.
The
Mediterranean Basin
22.1
Following the adoption of the EU Common Strategy for the Mediterranean in June
2000 and the first
Euro-Mediterranean Conference in Marseilles in November 2000, a second
Ministerial conference took place in Brussels on 5/ 6 November 2001. This
Conference discussed inter alia asylum and migration matters although no
agreement could be reached on the place and significance of the asylum issue in
the upcoming Euro-Mediterranean co-operation programme in justice and home
affairs. In fact, the full-fledged co-operation on JHA proposed by the EU to
partner countries in the Mediterranean basin was rejected by the latter and
will be reduced to a programme focusing on a limited number of agreed matters
of common interest, most likely legal and illegal migration, judicial
co-operation and the fight against terrorism and organised crime. In contrast,
the EU is prepared to raise co-operation in legal migration as well as promote
the notion of "co-development" in its dialogue with Mediterranean
countries - including action to improve the position of migrant workers and
families in EU Member States. Also, the fight against illegal immigration,
promotion of readmission agreements and the monitoring of migration flows will be part of future
co-operation.
Common Foreign and
Security Policy
23.1 In view of the
Swedish priority given to civilian aspects of conflict prevention and crisis
management, these issues were given much attention at the Goteborg European
Council taking stock of developments in shaping the Common European Defence and
Security Policy. The EU hopes to have a civilian police force standby for
intervention in any future crisis situation by 2003 (overall capability of
5,000, of which 1,000 to be deployable within 30 days, by 2003 latest).
23.2 The EU continued
discussions with the UN Secretariat, UN CIVPOL and DPKO regarding future
co-operation in crisis-management, conflict prevention and peace-keeping, covering
a wide range of still open questions such as mechanisms triggering
international involvement in crises,
recruitment procedures, operational co-ordination, command structures
etc..
23.3 The outfit of the
High Representative now includes an established police unit as part of the
Political‑Military Structures for the European Security and Defence
Policy, headed by a senior policeman with international mission experience and
including a strong core of specialised and qualified police experts. This unit
is tasked i.a. with co-ordinating between the civilian and military crisis
management sections of the developing EU common security department. Another function of this newly
established police unit is to help develop national structures to identify, prepare
and train police forces for deployment as part of an EU force in future
situations of crisis management/conflict prevention. In a second stage the EU
will establish similar support structures and programmes in the areas of civil
administration, rule of law, the
judiciary, and civil protection.
23.4 The Belgian
Presidency hosted a Police capabilities conference on 19 November in order to
draw together the national commitments and to consider implementation of a Police Action Plan adopted at the Goteborg
European Council. The Conference focused on quantitative and qualitative
aspects such as training and selection criteria, as well as guidelines for
command and control. As for the military aspects, the Belgian Presidency also
organised a Military capabilities Conference later in the day. Defence
Ministers agreed on a European Capability Action Plan, incorporating all the
efforts, investments, developments and co-ordination measures needed at both
national and multinational level to make the European military force for crisis
management operational. Both conferences allowed Member States to make
voluntary contributions on the basis of national decisions. It should be recalled that the
development of military capabilities does not imply the creation of a European
army, and that these capabilities are aimed at conducting crisis-management and
peace-keeping operations (so-called "Petersberg tasks") With
structures in place, the Union has started to test these structures and its
procedures for such purposes, including simulation exercises. Ministers from
non-EU European NATO Members and other countries which are candidates for EU
accession met with their EU counterparts on 20 November to discuss their
involvement in the future EU police forces and military forces for crisis
management.
23.5 During most of the
year, a dispute persisted with Turkey which, as non-EU NATO member, had
threatened to put a veto on EU access to NATO assets (logistics, command
structure, planning capabilities), yet a compromise was brokered at the end of
the year. This, however, met subsequently with criticism from Greece which
prevented the conclusion of final arrangements on the operational capability of
the Common European Security and Defence Policy at the Laeken Summit, although the
Summit adopted a Declaration for this purpose.
23.6 In a Special Report
on the Common Foreign and Security Policy issued in October 2001, the Court of
Auditors criticised the lack of transparency in financing this area of EU
policy, and called for a clear delineation of responsibilities between the
Council and the Commission in the implementation of the CFSP (it is to be
recalled that the Commission has established its own Rapid Reaction Mechanism
to address emergencies, including the dispatch of police, law administrators
etc).
.
RACISM AND XENOPHOBIA
24.1 In November 2001,
the Commission presented a proposal for a Framework Decision on Racism and
Xenophobia. The instrument is aimed at approximating the legislation of EU
Member States on the basis of common definitions and penalties which should
facilitate judicial co-operation and mutual legal assistance. The instrument
establishes a maximum penalty that is not less than two years. Aggravating
circumstances should result in more severe penalties. The instrument includes an expanded list of racist crimes.
24.2 The introduction of
this proposal, based on an existing Joint Action dating back to 1996, follows
the adoption of a Directive on equal treatment irrespective of race or ethnic
origin in June 2000, a Directive on equal treatment in employment and
occupation (including race, ethnic origin as one of a number of
non-discrimination grounds) in November 2000, and a Community Action Plan 2001 - 2006 based on best practices
and experiences in Member States which was launched on 1 January 2001.
24.3 The Vienna-based EU
monitoring centre on racism and xenophobia continued its monitoring activities
and published a third annual report
in 2001 voicing concern over continuing increase in racial and ethnic
discrimination at all levels of society in a number of EU Member States. The
report also mentions police ill-treatment in detention centres for illegal
immigrants and rejected asylum-seekers. The report notes positive developments
mainly at the legislative level through the adoption of anti-discrimination and
anti-racism laws and the establishment of monitoring and complaints bodies.
UNHCR Brussels
December
2001