Update on EU asylum and related matters
15 May — 15 August 2000
The second formal meeting of the Justice and Home Affairs (JHA) Council during the Portuguese Presidency took place on 29-30 May. No decisions on asylum matters were taken. The Council had an initial debate on the Commission proposal on temporary protection (see below). It also reviewed the draft guidelines for the Commission to negotiate readmission agreements with selected third countries, as well as progress in the work of the High Level Working Group (HLWG) on Migration and Asylum, and progress in the negotations on the draft Directive on family reunion and the legal base for the EU Refugee Fund. It gave its green light to approval by the General Affairs Council — and the Feira European Council — of a report on the external dimension of the EU’s JHA policies (see below), the arrangements for the integration of Norway and Iceland in the Schengen system and adopted assessments of the JHA situation in Slovenia and Cyprus (reports by the Collective Evaluation Group).
The Feira European Council reaffirmed Member States’ commitment to implement the Tampere Conclusions, particularly as regards combatting illegal immigration, trafficking in human beings (following the Dover tragedy), and terrorism. The Summit also adopted a report on the EU’s external priorities in the JHA field, to be incorporated in the EU’s overall external strategy to develop the area of freedom, security and justice, as requested by the Tampere Summit. The report stresses the need for the EU to integrate all JHA matters fully in its external relations in line with the comprehensive, integrated, cross-pillar approach pioneered by the High Level Working Group for migration and asylum matters. It lists the priority areas for cooperation with countries of origin, and analyzes the instruments, working structures and methods available to increase coherence and consistency of EU policy in this field.
The Summit reviewed progress of work undertaken by the InterGovernmental Conference on the Treaty reform, to be concluded by the December Nice European Council. In addition to the three Amsterdam "left overs" (size of the EU Commission, weighting of votes in Council and extension of qualified majority voting) the issue of "enhanced cooperation" will be included on the IGC agenda (but not the Common Security and Defence Policy or the incorporation in the Treaty of the Charter of Fundamental Rights). The IGC will also discuss the possibility of revising Article 7 of the Treaty (fundamental rights) with a view to amending the modalities of the sanctions mechanism (following the institutional discussions on the sanctions imposed by fourteen Member States against Austria).
The Summit also adopted a number of Conclusions on the Balkans, referring to the need to move forward with the stabilisation and association process and intensify cooperation in the region in JHA matters. The Conclusions reiterate the need for free and fair elections in Kosovo and the return of refugees to the region. The Summit reaffirmed the EU’s determination to continue playing a leading role in the Stability Pact (which should be translated i.a. in funding). The Summit welcomed the incoming French Presidency proposal to organize an EU — Balkans Summit in Croatia in the autumn. The Summit approved the common strategy on the Mediterranean region (including a JHA component) — the third of its kind, following common strategies on Russia and Ukraine. The Summit also called for setting in place the appropriate mechanisms for the implementation of the decisions taken at the Africa-Europe Summit held in Cairo last April (its Conclusions include Tampere language on the right to asylum and refugee protection).
The Portuguese Presidency organised a high-level seminar on EU asylum policy in Lisbon on 15/16 June. Several Ministers present (Mr. Schily, Ms. Klingval, Mr. Straw, Mr. Cohen) and Commissioner Vitorino reaffirmed the central place of the 1951 Convention in Europe’s future asylum system, yet called for additional measures covering for certain protection gaps as well as addressing the various problems States’ asylum systems are confronted with, which, given their nature, the 1951 Convention regime alone cannot solve. Thus, some European states are developing proposals for policies and practices in respect of regionalization, return of rejected cases, or the screening out of claims on the basis of the "safe country of origin" concept. UNHCR’s Director of International Protection informed the meeting of UNHCR’s initiative to launch wide-ranging consultations with Governments on the future of the protection system on the occasion of the 50th anniversary of the 1951 Convention. These consultations should reaffirm the Convention as the fundamental core of the international protection system yet need to work out proposals to resolve issues of disagreement (non-state agents of persecution e.g.) and address gaps to be covered by complementary systems. Many of the statements by Government representatives emphasized the need to develop a coherent and comprehensive European approach to migration management, including the establishment of legal channels for admission, to address future demographic trends as well as the need to preserve the integrity of States’ asylum systems. A number of participants stressed that the 1951 Convention cannot respond to contemporary challenges of complex patterns of population displacement, resulting in mixed flows and abuse of the asylum system, and hence, needs to be supplemented with new instruments (e.g. on complementary protection), schemes (reception in the region), or mechanisms (temporary protection).
A UNHCR delegation met with the incoming French Presidency in Paris on 30 June. The exchange focussed on the challenges for the EU develop a coherent approach to the various dimensions of migration management, based on the absolute respect for upholding the right to asylum. The meeting also reviewed the Presidency’s asylum agenda, i.e. the Presidency initiative on reception conditions, the Commission proposals on temporary protection, family reunion, asylum procedures (forthcoming) and the revision of the Dublin Convention. UNHCR asked the Presidency to facilitate the early adoption of the legal basis for the European Refugee Fund and called for a more vigorous yet balanced implementation of the Action Plans adopted by the High Level Working Group on Migration and Asylum.
As regards the Presidency’s workprogramme, this generally has a strong focus on social affairs, employment, the information society and innovation. The programme furthermore focuses on the need for reform of the EU institutions (the IGC agenda — to now include also the issue of "enhanced cooperation"). As for enlargement, the Presidency will review the forthcoming Regular Reports and the state of preparedness of each of the applicant countries. The Presidency will put efforts in giving further shape to the Common Security and Defence Policy (see Feira Conclusions) by preparing i.a. for the establishment of permanent structures (such as the Political and Security Committee) in administering the CFSP. The workprogramme lists a number of priorities for the EU’s external relations (Balkans, Russia, Mediterranean basin, Asia and the transatlantic dialogue with the US), and development assistance (the programme does not include a chapter on humanitarian aid and has only a very scant mention of Africa).
As for JHA matters, the workprogramme lists the various initiatives to be taken in the area of asylum and immigration, which have a strong emphasis on control of illegal immigration and propose the adoption of a number of repressive Community legislative instruments. The Presidency wants to promote partnership with countries of origin through co-development (a seminar was held on the issue in early July — see below). As for control measures, the Presidency intends to reach agreement on a Directive to stiffen penalties for carriers bringing in passengers not in possession of the necessary papers. It submitted in July a draft framework Decision on criminal-law penalties for facilitators of illegal immigration: the proposal aims at approximating existing legal criminal regimes (definition of offences, penalties, exemptions from liability or aggravating circumstances etc). A third measure to be proposed by the Presidency in this regard is a draft Directive to ensure more effective enforcement of expulsion orders through arrangements for mutual recognition of such orders by Member States. The Presidency will also see to it that the negotiations for readmission agreements to be concluded by the EC as a whole with selected third countries (Russia, Sri Lanka, Pakistan, Morocco) will be stepped up and concluded as soon as possible (see below).
While marked by a strong focus on controlling illegal immigration, the asylum paragraph of the workprogramme mentions the Presidency initiative on harmonizing conditions of reception for asylum-seekers (particularly as regards social welfare facilities), the evaluation of the Dublin Convention with a view to preparations for a new Community legislative instrument, and support for the forthcoming Commission proposal for a Directive on asylum procedures. The workprogramme makes no mention of the Commission proposal on temporary protection or the forthcoming Commission Communications on migration management and a common asylum procedure and uniform status. In the field of migration, the workprogramme does not mention the Commission proposal on family reunion; it focuses on the need to improve integration of legally residing third country nationals particularly by harmonizing conditions for the issuance of long-term residence permits. This will be the subject of a seminar in October to be followed by a legislative initiative.
The Presidency submitted an Action Plan to improve coordination in controlling illegal immigration in early July. The Plan is not intended for adoption in Council but rather to refine the existing practices of Member States, through improving exchange of information, early warning and response systems, as well as the establishment of a network of liaison officers in countries which are source of illegal immigration. A task force of heads of national police forces will be charged with this dossier and liaison officers will be dispatched to countries of origin in a systematic and coordinated manner.
In the area of visas, the Presidency submitted a proposal for a Regulation to relax conditions for movement within the EU of holders of a long-term visa who have not yet obtained their long-term residence permit. In a separate development, the European Parliament, at its July session, approved the proposal for a Regulation establishing a list of third countries whose nationals are subject to a visa requirement in order to cross the external frontiers and a list of those countries whose nationals are exempt from this requirement (the Regulation will replace a similar one from 1995 as revised in 1999). The new Regulation is now under discussion in the relevant Council bodies where differences between Member States have emerged about the possibility to include a transition period for the lifting of visa requirements for certain countries. This is particularly the case for Bulgarian and Romanian nationals where, given their countries’ status of candiate countries, the Commission and the European Parliament have proposed to exempt these nationals from the visa requirement for entry into EU territory, yet where some Member States do not agree given the continued arrival of - generally unsuccessful - asylum-seekers from these countries.
The Presidency organised a seminar on co-development and migrants in Paris on 6 — 7 July (UNHCR was exceptionally invited to attend, provided it would respect the conditions of confidentiality). High ranking officials (i.a. Ministers Chevenement, Josselin and Schily, and Commissioner Vitorino) reviewed States’ policies on partnership with countries of origin and transit. The seminar failed to adopt a Presidency proposal for a reference text aimed at better defining the linkages between co-development and migration, and allowing for the establishment of one or two EU programmes of partnership with source/transit countries (following France’s experimental programmes with Mali and Senegal).
The Presidency organised, in partnership with the UK, Italy and Canada, a conference on 20 July on the fight against the channels of illegal immigration. The event was an initiative of Minister Chevenement, attended by the Ministers of Australia and Canada and other high-ranking personalities including from Central and Eastern European countries (UNHCR and NGOs were not invited), and co-funded by the Commission’s Odysseus programme. The conference discussed a number of concrete measures to reinforce cooperation between EU Member States in combatting illegal immigration. These measures should be brought within a coherent overall approach to migration, with due attention for a more transparent, better coordinated and more open admission policy, a real common policy in the area of readmission, common standards for repatration and the development of a common asylum policy including regionalization and resettlement policies as a means to prevent trafficking. Also, the EU should address in more detail the different phases in the phenomenon of illegal immigration, by making use of particular individual instruments - such as action in and with source countries, reinforced border controls, intelligence gathering, adoption of Community legislative instruments providing for sanctions, securing cooperation of victims, humane repatriation — and this against the background of States’ obligations under the 1951 Convention. The seminar specifically called for the adoption of measures at EU level related to forged documents, specialised training of staff dealing with immigration control, and the establishment of a exchangable, or common data bases.
JHA Ministers met for an informal Council meeting in Marseille on 28 and 29 July. The main topic of the meeting was, again, an exchange on migration management and control of illegal immigration. In addition, the meeting discussed i.a. the project for a European Police academy, the improvement of the Schengen Information System and the need to reinforce cooperation with Mediterranean countries in combating illegal immigration, crime and terrorism i.a. by including provisions in Association Agreements on such cooperation (including readmission). As regards the main subject of immigration, Mr. Chevenement delivered a comprehensive statement on the issue (available from BO Paris or RO Brussels) levelling some poignant criticism against the recent UN Population study on replacement migration, considered to be based on fragile demographic assumptions (current low fertility rate may well go up again), and on a notion of "replacement migration" which ignores certain essential economic and social factors (the structural cost of integrating one immigrant is four times his annual salary, not to speak of integrating his or her non-productive family members; rising costs of pensions can be met by postponing the retirement age). A future European immigration policy should be inspired by the three axes of the Tampere Summit: co-development, managing migration and controlling illegal entry, and integration of migrants, and this based on the absolute respect for the right to asylum.
At the informal Council meeting, the Belgian minister announced that his country will organize a large ministerial conference on a future European migration policy in autumn 2001. The results of the conference may be included in the Conclusions of the European Council to be held at the end of the Belgian Presidency which is tasked to review the implementation of the Tampere Conclusions.
The High Commissioner visited the EU institutions on 5 and 6 July. The HC met with Commissioners Nielson, Patten and Vitorino. She also met with Mr. Hombach, Coordinator of the Stability Pact Office, and with Mr. Ajello, EU Special Representative for the Great Lakes.
In her meeting with Commissioner Vitorino, in the wake of the Feira Council and the Dover tragedy, the focus was on the need to preserve the integrity of the asylum system in the current migration environment where bold measures against trafficking and illegal immigration are needed. The HC stressed that the momentum of the Tampere Summit must be maintained and that the future common asylum system in Europe is based on high protection standards with a full and inclusive application of the 1951 Convention at its core. Commissioner Vitorino informed the HC that the Commission is planning to accelerate the process of legislative development in asylum and migration, and that the two Communications on asylum and migration of this autumn intend to set the policy guidelines for the years to come. Commissioner Vitorino agreed with the HC that a positive migration policy needs to be promoted as a measure fundamental to maintaining the integrity of the asylum system The HC stressed that Europe’s approach to migration and asylum problems must be developed from a global perspective, and that the export value of future EU strategies and measures will be considerable. The HC and Commissioner Vitorino also reviewed the work of the High Level Working Group; regionalization and in-region processing should not become a substitute for Europe’s obligations to provide protection to those seeking protection on its territory.
Following their meeting, the HC and Commissioner Vitorino signed an exchange of letters in order to reinforce cooperation on asylum and refugee matters, as a concrete expression of implementing Declaration No. 17 of the Amsterdam Treaty that foresees consultations with UNHCR on questions regarding asylum policy. This will be done in semestrial senior level meetings.
In her meeting with Mr. Hombach, the HC reviewed progress in refugee return (a priority for the Stability Pact), the role of the FRY (without the FRY no regional stability can be achieved), the need for cooperation in asylum and migration system development, in order to address increasing problems of illegal immigration, trafficking, asylum and border control.
Following meetings of the Convention, the body tasked with drawing up the Charter of Fundamental Rights, the Praesidium of this forum submitted a complete draft Charter to the Convention by end July. Members of the Convention have been invited to forward their comments on this draft before 1 September. The Convention will meet twice in September to finalize the draft which is expected to be reviewed by the Biarritz European Council in mid-October prior to final adoption by the Nice European Council in December. The Nice European Council will also have to decide what future status the Charter should acquire, i.e. whether it should be included in the EU Treaty at a later stage and if so, whether it would be part of the "constitutional" part of the Treaty (provided a reorganisation of the Treaty will be aimed at, a subject which the Nice Summit has to decide on separately).
The draft text includes an article on the right to asylum, which does not pronounce itself on the subject of this right, a right which must be guaranteed with due respect for the rules of the 1951 Convention and in accordance with the EU Treaty (no mentioning of the asylum protocol to the Treaty). The draft of this article follows more or less UNHCR’s proposal. The Praesidium decided not to include the wording "the right to seek and enjoy asylum" in order to avoid the risk that the end result of the negotations will be a reference to "the right to seek asylum" only. The draft includes a separate article preventing collective expulsions or individual expulsion/extradition where the latter may result in the death penalty or torture or other inhuman or degrading treatment — a UNHCR proposal to strengthen the text with a reference to the principle of non-refoulement was not accepted by the Praesidium.
The new structure of the Charter is centered around six chapters: dignity, freedoms/liberty, equality, solidarity, citizenship and justice. These are followed by "horizontal" provisions stipulating that the rights set out in the Charter may not alter the competencies of the Union and can be imposed on Member States only whilst implementing EC law. Insofar the Charter includes rights corresponding to rights laid down in other instruments (such as the ECHR, UN instruments) none of the rights proposed shall be interpreted as restricting or adversely affecting the rights laid down in these other instruments.
The present draft has met with criticism from NGOs, trade unions and the business sector as regards the chapter on social and economic rights, and from women’s groups for its presumed sexist language. Human rights NGOs criticize these provisions as being labelled in a less precise manner than the social rights established in the revised European Social Charter (together with the ECHR, this is the main instrument which has inspired the drafters of the Charter). For UNHCR, the main task is to preserve the language of the asylum provision in its present form (possibly with some slight editing improvements) and to see whether the expulsion article can be amended through inclusion of a reference to non-refoulement (if it can be assured that by lobbying for such an amendment this will not trigger the introduction of other amendments going in the opposite sense, i.e. lowering the standards)
The May JHA Council held an extensive debate on the outstanding issues related to i.a. Article 5 emergency measures (Spain calling for 50 % of the funds to be kept in reserve for urgencies; on the other end of the spectrum Germany calling for 100 % of the funds to be used for structural measures) and Article 9 the distribution criteria (a minority of States could not agree with the Presidency proposal to provide a fixed sum — 2 % - to each Member State, leaving some 65 % ( 5 % for transnational, Community actions) for distribution according to the number of beneficiaries present on Member States’ territory. The Council urged COREPER to remove the latest obstacles to reaching agreement which Ministers themselves were not able to do at their May meeting. NGOs have expressed scepticism about the future of the Fund, given the apparent lack of political will among some Member States to reach agreement on the instrument, and may even raise the question whether integration should remain as part of the Fund, in view of the future action programme on social inclusion to be expected for 2001, which appears to offer better possibilities for NGO support in this area.
At the end of July, a compromise seemed to be reached on the outstanding issues. As for emergency measures, a Luxembourg compromise was accepted, i.e. the Fund would address emergency situations pending entry into force of the Directive on Temporary Protection (see below), based on a unanimous Council decision in each individual situation. Once the draft Directive on Temporary Protection is in force, its provisions would govern the disbursement of finances among Member States. As for the allocation criteria a Dutch proposal was accepted allowing for a fixed amount for each Member State during the next five years, however, diminishing with 20 % each year and ending in 2004 latest. COREPER will discuss a new and hopefully final draft of the instrument, including these compromise formulae, at its first meeting after the summer break on 6 September, in order to allow the JHA Council on 28/29 September to adopt the instrument and the Commission to use the funds reserved for budgetary year 2000.
The May JHA Council took note of a progress report submitted by the Presidency outlining a number of outstanding questions which previous discussions in the Group Migration and SCIFA had identified. The Council asked the Commission to take these questions into account when preparing a modified proposal in September following adoption of the European Parliament opinion (Klamt report) in plenary that month. The questions as listed by Member States relate i.a. to whether family reunion is to be regarded as a right subject to specific conditions, whether refugees should be covered by the Directive, whether persons benefitting from subsidiary forms of protection should be included, whether the validity of the residence permit suffices for family reunion or whether the reasons and conditions which warranted issuance of the permit also need to be taken into account, whether the definition of the family needs to be narrowed, e.g. as regards unmarried couples, dependent relatives in the ascending line, and whether access to the labour market should be ensured to reuniting family members etc.
In mid-July the competent European Parliament committee adopted its opinion on the directive. Final adoption in plenary will take place in September. The rapporteur Ms. Klamt stepped down following the vote, since the committee had rescinded many of her amendments which would have restricted the scope of the Commission proposal as well as the level of protection offered considerably. UNHCR and NGOs were able to obtain the majority support in the Parliamentary committee for preserving, and, where required, strengthening the Commission proposals, with the exception of the coverage of beneficiaries of subsidiary forms of protection. The Commission has indicated to UNHCR that in preparing its modified proposal in September, it will follow the Parliamentary proposals to a large extent, that is preserve the refugee dimension, yet dropping those benefiting from subsidiary protection — by reducing the scope of the instrument, the Commission argues it is in a better position to defend a high standard of protection, e.g. preserving the proposed rights and benefits (although the Commission intends to give Member States more flexibility on access to employment), and maintaining coverage of unmarried couples, and relatives in the ascending line. Following the submission of a revised proposal, Member States will engage in a new round of negotiations in SCIFA and the Group Migration.
The Commission working paper is at present under discussion in the Member States which are expected to submit their comments to the September and October meetings of the Asylum Working Party. Some NGOs have already sent in their comments, UNHCR will do so shortly. The two main issues appear whether a revised Dublin system can be fairer and more effective as long as Member States administrative and judicial practices in asylum cases are not harmonized and whether it would not be preferable to base the new system on the criterion — in addition to family reunion and with scope for humanitarian factors — that the Member State where the asylum application is lodged should take responsibility.
Member States are reportedly slow in sending in their comments to the Commission questionnaire evaluating the present mechanism. The Commission is not yet in a position to identify certain preferences among Member States for any of the policy options laid down in the Commission working paper.
On 24 May, the Commission tabled a new proposal for a European regime on temporary protection, completely revising its original initiatives dating back to 1997 and 1998. The draft Directive aims at establishing minimum but sufficient standards to ensure a balance in the efforts of Member States in receiving refugees and displaced persons in a situation of mass influx; establishing a maximum duration of the regime of 2 years; providing for immediate protection once the Council has decided by qualified majority to invoke the regime; providing for a financial burden-sharing mechanism through the European Refugee Fund; ensuring, and providing mechanisms for, access to the asylum procedure; setting down the rights and benefits for those taken under the regime; establishing measures relating to return; establishing a solidarity mechanism based on the principle of "double voluntariness" and laying down arrangements for (mandatory) consultations with UNHCR. The Ministerial discussion focused mainly on the question of the rights and benefits to be determined and on the relationship with the 1951 Convention.
The French delegation submitted a note, criticizing some elements of the Commission proposal, which it wants to limit to financial burden-sharing and strengthen its link with the 1951 Convention by stipulating that access to the asylum procedure must be ensured at any time. Germany has expressed concern about the proposed level of rights and benefits and insists on a mechanism of physical burden-sharing. In the July meeting of the Asylum Working Party, delegations expressed reservations regarding the right to employment (Germany, Italy, UK, Austria), the proposed solidarity mechanism (France against physical distribution, NL, Italy and Austria want further explanations), the duration limited to 2 years (Germany and various other delegations arguing for a longer period), conditions for return (Germany considering these to be too rigid) and the decision-making mechanisms (France opposed to qualified majority voting, arguing in favour of unanimity). The discussions will resume in the Asylum Working Party in September.
In early July, the French Presidency submitted a document to the competent Council groups on common minimum standards for reception conditions. Originally planned as a draft legislative instrument, following negotiations with the Commission (which claims the sole right to initiative in asylum matters following a decision taken in the Council) the paper was "downgraded" to a discussion paper. It will serve exchanges in the Asylum Working Party in order to identify the critical issues and the level of protection aimed at prior to the Commission’s preparations for a legislative instrument in early 2001.
The Commission has also commissioned a study analyzing Member State practice which is due for autumn 2000. UNHCR published its own analysis of Member State practice, preceded by a chapter outlining the Office’s recommendations for minimum standards in the area, also in view of existing international standards. The UNHCR study was shared with the Commission and Member States, as well as NGO partners, in early August.
A first discussion during the July meetings of SCIFA and the Asylum Working Party has revealed that Member States generally welcome the Presidency proposals, yet that particularly the standards related to access to employment, type of social welfare (in-kind or financial), free movement, and the scope of the future instrument (limited to those who have applied for Convention refugee status? those whose asylum application has not yet received a first instance decision?) need further discussion.
The Commission services continued preparations for a draft Directive on common standards for asylum procedures. The adoption of common standards is considered a first step in the process to full harmonization of Member States’ asylum procedures. UNHCR Brussels has had extensive informal consultations with the Commission services during the drafting process, allowing the Office to include a number of proposals and to amend various draft articles. Following receipt of the European Parliament opinion on the March 1999 Commission working document (see below) and based on an analysis of the main points of convergence from Member States’ responses to this working document, as well as those from UNHCR and NGOs, the Commission aims at finalizing the proposal for a Directive in September, for presentation to the 28/29 September JHA Council meeting.
The European Parliament, in its June session, adopted its opinion (Schmitt report) on the March 1999 Commission working document. The report includes a number of positive recommendations suggested by UNHCR, yet also contains some problematic elements such as a call to harmonize "safe country" lists (both countries of origin and third countries) Parliament also suggests that the Commission rationalizes its preparations for legislative instruments and reverses the order of proposals, but given the acceptance of the scoreboard earlier this year, the Commission and Council are unlikely to follow this request.
The May JHA Council considered a draft decision authorizing the Commission to open negotiations for a Community (EC) readmission agreement with Morocco. COREPER was mandated to resolve the outstanding issues, relating i.a. to the obligations of the readmitting state as regards third country nationals and stateless persons. This is of concern in so far such obligations should cover for the needs of asylum-seekers whose claims have not been heard. The Council also discussed the directives for a negotiation mandate for the Commission regarding similar agreements with Russia, Sri Lanka and Pakistan. The choice of the countries has been dictated by the work of the HLWG and the existence of the common strategy with Russia. The possibility to conclude Community readmission agreements with third countries finds its basis in the Tampere Conclusions which recognise that the Amsterdam Treaty confers powers on the Community in the field of readmission. Member States are reluctant to accompany the readmission of larger numbers of "illegals" with financial support for the readmitting state; this should not be part of the negotiation directives but only be considered on an ad-hoc basis; in the case of the agreement with Morocco, the possibility for such financial assistance will be mentioned in a Council declaration attached to the negotiation directives (Tampere Conclusion No. 26).
The Commission services started preparations for two significant initiatives to be launched at the end of the year: a Communication (policy document) on migration management, and a Communication on the possibilities for a common asylum procedures (going beyond common standards) and a uniform refugee status. UNHCR is expected to engage in informal consultations with the Commission in September when a first draft outline of both Communications is available. These initiatives should bring the legislative and policy work to be undertaken by the Commission in the years to come within a strategic framework, highlighting the main orientations and key elements of future policy instruments and programmes in the areas under review in these Communications (in addition to the legislative instruments prescribed by Article 63 of the EU Treaty).
The High Level Working Group adopted a progress report at its meeting on 19 May, including an extensive table drawn up by the Presidency, the Commission services and the Council secretariat indicating the package of measures stemming from each Action Plan which it is believed can start to be implemented during 2000. The report and table were subsequently approved by the May JHA Council and June General Affairs Council meeting. In drawing up a priority list of measures to be implemented shortly for each Action Plan, it has been the stated intention to adopt a balanced package giving due attention to protection and control measures. The implementation report should be seen as a living document which needs regular updating. As regards funding, the Commission has no resources available for implementing projects during 2000, yet has made available a separate budget line in its draft 2001 budget for implementation of the HLWG activity for 5 MEURO. The Netherlands has reserved another 4.5 MEURO for implementation of the priority measures, provided other Member States will also come forward with funding — which so far they have not done. The HLWG also met with delegations from Switzerland, Norway, the US and Canada in June to discuss cooperation and coordination of activities. Particularly the meeting with the Swiss was reportedly very productive.
As for the implementation of measures on refugee protection and assistance, some have been included in the short-term priority list while others are not. Generally, the consolidated lists of measures proposed by international organisations for each Action Plan have been put in a separate chapter without any accompanying funding commitments. It remains unclear whether UNHCR and other international organisations can expect HLWG funding for selected operations in the short term, although it seems that this implementation report, as a minimum, offers an indication of political support for many of UNHCR programmes in the countries under review. It should be noted that NGOs have been critical of the lack of focus on human rights measures in the implementation prioritization.
The HLWG will start preparing a comprehensive report on implementation of all the Action Plans (including the one on Albania, see below) for the Nice European Council in December 2000. Given its priority attention, the HLWG decided to send a mission to Morocco with a view to holding technical discussions to explore with various authorities involved concrete steps to implement the projects listed in the implementation table/report (so far two consecutive mission dates for end May and end June had to be cancelled due to agenda problems). The HLWG was also expected to establish contact with the Council Working Parties under the Common Foreign and Security Policy to discuss the Action Plans and relevant (joint) Second Pillar assessments (on the political situation, human rights, development etc) drawn up by EU delegations in the selected countries.
The June General Affairs Council approved the HLWG report on Albania and neighbouring region (i.e. Kosovo). Given the Plan’s focus on Albania as a source and transit country for illegal immigration and trafficking, the proposed measures are mostly prevention- and control-oriented rather than protection-based. The list of JHA measures is quite detailed compared with those in the areas of foreign policy and development assistance, and focus mainly on readmission/return, combatting crime, trafficking and reinforcing border controls. The Plan, however, includes capacity-building measures in the area of asylum and migration, and calls for coordination of activities with international organizations.
The HLWG Plan on Albania/Kosovo was sent to the European Parliament, whose rapporteur Ms. Karamanou (Greece) has contacted UNHCR and NGOs for comments for inclusion in her report, to be discussed in the relevant committee in September. UNHCR Tirana prepared an analysis of the various measures of the Plan of relevance to UNHCR. These were presented at an informal expert meeting organized by the Commission in Brussels in mid-July, during an exchange with international organisations and NGOs on possibilities for implementation. UNHCR explained its strategy for capacity-building in asylum in Albania, based on a three-pronged approach addressing the different needs of asylum-seekers, economic migrants and trafficked persons, which require the development of three separate, although inter-related, systems, with particular emphasis on the need for access to the right system by the relevant category of persons. The UNHCR delegation expressed caution on the return of rejected cases to Albania on the basis of readmission agreements which are lacking provisions on the situation of asylum-seekers whose claims have not been heard. UNHCR also analyzed the Kosovo chapter of the Plan in view of its operational strategy for the region. During the meeting it was mentioned that the Action Plan will be considered within the framework of the Stability Pact Working Table III — although the focus of the HLWG Plan is on managing (illegal) migration to the EU from Albania and Kosovo whereas the Stability Pact attention focuses more on asylum and migration system development in the region (see below).
On 6 June, after just five months of examination the Council was able to reach unanimous political agreement on a proposed directive implementing the principle of equal treatment of persons irrespective of their racial or ethnic origin. The formal adoption happened later in the month and the text was subsequently published in the Official Journal. The directive requires Member States to adapt their legislation so as to combat all forms of discrimination based on racial or ethnic origin, in whatever area (employment, housing, education, social security etc.) The instrument provides for definitions of direct and indirect discrimination and of harassment and lays down a minimum framework for outlawing discrimination on racial or ethnic ground in Member States as well as a common minimum level of redress in order to guarantee that in each Member State victims receive basic legal protection, with comparable rights to seek compensation.
The Directive is part of a set of measures implementing Article 13 of the Amsterdam Treaty aimed at combating discrimination in the Member States. The other two measures are made up of a Commission proposal for a directive establishing a general framework for equal treatment in employment and occupation (anti-discrimination measures as regards not only race and ethnic background but also sex, sexual orientation, disability, religion or belief, age etc.) and a supporting Community Action Programme to combat discrimination. Work on the package proposed by the Commission in November 1999 had started in Council in early 2000. Following receipt of the European Parliament opinion on the first measure the June Social Affairs Council was able to reach political agreement on the text of the draft directive on racism.
The adoption of the Directive to combat racism and xenophobia took place in record time — also on the spur of the events in Austria — and shows that the normally painfully slow EU legislative process is capable of quick and efficient work when there is the political will on the part of the Member States.
CIREA met in June for an exchange with UNHCR on the eligibility of asylum-seekers from Iraq, in the presence of a Canadian and US delegation. CIREA delegations were mostly interested in the possibilities to apply an internal relocation alternative to Northern Iraq and to arrange for return of rejected cases. The CIREA meeting also discuss a few thematic issues, including eligibility aspects of the treatment of asylum applications lodged by separated children..
In July, CIREA met with UNHCR for an exchange on the eligibility practice regarding Sudanese asylum-seekers. UNHCR prepared background documents on Iraq and Sudan.
During the reporting period, UNHCR Brussels visited all the Commission country desk officers for Central European and Baltic states (with responsibility for JHA matters) to highlight UNHCR’s main concerns in regard to the developing asylum systems in each of the applicant countries, for inclusion in the forthcoming Regular Reports (currently under preparation). The meetings were also aimed at identifying asylum issues to be included in any revision of the Accession Partnership Priorities and be given due attention in the pre-accession strategy, reviewing PHARE assistance under the Horizontal and National Programmes during 1998 — 2000 and, most importantly, identifying potential asylum projects for inclusion in PHARE 2001 assistance (National Programmes — currently under preparation). As a follow-up, UNHCR offices in applicant countries have been asked to liaise with their JHA counterparts in EU Commission delegations, as well as with the relevant Government counterparts, to discuss the preparation of asylum fiches for the PHARE National programmes.
Implementation of the PHARE National Programme continued following the second series of Round Tables and another series of workshops; the Programme is nearing its completion with an evaluation conference in November. For each of the applicant countries a National Action Plan will be available, shortly to be supplemented with a document for each country outlining the future directions for asylum capacity-building. Both documents will be very useful tools in future dialogue with the European Commission to review priorities in asylum within the framework of the pre-accession strategy.
Within the framework of the Stability Pact, UNHCR Brussels was in regular contact with the SP office regarding progress in the return of refugees to and from Croatia, FRY and BiH and within BiH. Donor pledges were collected and analyzed following the donor conference at the end of March (the translation of pledges made into concrete projects is generally extremely slow and certainly not flexible enough to respond quickly to developments on the ground). Visits of Mr. Koschnick, chairman of the Refugee Return Initiative, were prepared and given follow-up. The Refugee Return Group met in Zagreb in mid June. Returns are picking up, also as a result of legislative developments (adoption and implementation property laws etc), yet can only be sustained if they are supported with sufficient funding for reintegration assistance.
The Regional Table meeting in Thessaloniki on 8 June reiterated that refugee return should be listed a priority in the SP Agenda for Stability. The meeting stressed the need for speeding up the reform process in the countries of the region, and a number of priority areas were listed: institutional reform , anti-corruption measures, the role of the media, improvement of the business and investment climate and abolition of trade barriers. The role of civil society in all these processes should be more prominent. The meeting also called for an improvement of the mechanisms for an enhanced involvement of the countries of the region in the management structures of the various activities. These structures should be more effective and transparent.
The Stability Pact has identified asylum and migration capacity building as a priority area for Working Table III (Justice and Home Affairs). Two meetings were held in Brussels in May and July with partners to discuss the rationale, objectives, parameters and methodology of such activity, which should result in separate projects on asylum and migration system development, yet to be brought under one umbrella acknowledging the inter-related aspects of illegal immigration, asylum and migration for legal purposes.
The German Bundesamt (BAFl) and UNHCR are preparing an asylum project, to be adopted by the next meeting of Working Table III in Sofia on 4-5 October. Intensive negotiations on roles and responsibilities, as well as the objectives, key elements and implementation strategy were held between the two organisations. These resulted in a first information paper which will be put on the SP website, and to which ICMPD and IOM have also contributed (available upon request from RO Brussels).
On 29 June, UNHCR and Save the Children published a major report on the situation of separated children in EU countries and Norway. The main conclusion of the report is that the particular needs and rights of separated children within States’ asylum systems are generally little understood or acknowledged and the report lists a number of recommendations amending this situation. It also calls for preparation of Community legislation in this area i.a. through mainstreaming the needs and rights of this vulnerable group in the various Community legislative instruments. UNHCR Brussels is preparing a short lobbying guide on the latter issue.
On 6 July, an independent expert, John Morrison, published a study on trafficking commissioned by UNHCR showing that human trafficking often is the only escape route for many genuine refugees who seek protection in Europe. The report calls on the EU to develop common measures to prevent and sanction trafficking within a human rights framework based on States’ obligations to provide access to territory and to the asylum procedure by those who are seeking protection. It is hoped the report ‘s recommendations will be taken into due account by the European Commission and Member States in developing instruments and action plans combating trafficking (see above). It should be noted that the report is an independent study which, while commissioned by UNHCR, does not necessarily reflect the positions of the Office on the various issues covered in the report.
Also in July, UNHCR published a study on reception standards in EU Member States as a contribution to the preparations for a Community legislative instrument on common standards for reception of asylum-seekers. The study identifies general trends in reception policies and practices in the EU Member States and highlights the often varying standards, partly as a function of the different phases of the asylum procedure. The study includes a chapter listing UNHCR recommendations for common standards, formulated on the basis of current State practice and drawing upon basic principles of international human rights law.
UNHCR Brussels
August 2000