The international system to protect refugees is in crises. People become refugees because their human rights are at grave risk. They sever the link with their own State, and seek the protection of another State, because their own government is persecuting them or cannot be relied on to protect them. When refugees seek the protection of another State, they rarely receive a warm welcome. Experience in the EU shows that many people who deserve protection are falling through the net: denied access to asylum procedures; wrongly told they do not qualify as refugees; sent back to countries where they will not be safe. However, instead of enhancing refugee protection, States are trying to restrict even further the definition of who qualifies for protection and the degree of protection they should receive. At the same time, they are trying to ensure that refugees remain outside the frontiers of the Union. The reality is that States, both individually and collectively, are unwilling to commit themselves to upholding international law and standards for refugee protection.

The European Council in Tampere stated that "Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union" (conclusion 15). On 22 November 2000, the Commission adopted its Communication on a future Common Asylum System for the EU. The Commission reaffirms that the sources of protection for refugees in the Union are to be found in international refugee and human rights law, as well as in the Charter of Fundamental Rights of the EU.

However, Amnesty International is concerned that the process of harmonisation of asylum regimes in Europe may undermine the international regime for the protection of refugees. The proposals already presented on asylum and migration, such as for instance, asylum procedures, temporary protection or carriers’ sanctions fall short of international law and standards in refugee protection. While Member States declare their commitment with international refugee and human rights law, in practice compliance with international standards is often not achieved, as the decisions on this matter of both national and international bodies and courts show. Time and again, EU Member States reaffirm their commitment to the UN Refugee Convention and to other international human rights instruments. However, those declarations do not constitute sufficient guarantee that the actual instruments adopted will not obstruct refugees from being adequately protected in practice.

The year 2001 will see the 50^th anniversary of the UN Refugee Convention. UNHCR, in its 50^th anniversary, has engaged in a consultation process aiming at revitalising the international regime for the protection of refugees.

Amnesty International is convinced that this is the time to remind Member States of their existing obligations towards refugees and to urge them to ensure that these minimum standards are respected, not only formally, but in practice too. EU Member States should translate their expressed commitment to their international refugee and human rights obligations into concrete standards ensuring that refugees are afforded maximum protection. Amnesty International calls on the EU and its Member States to ensure that the full framework provided by international refugee and human rights law is applied to the protection of refugees, when acting individually or collectively, both within the EU and in other international fora.

Amnesty International is concerned that despite the expressed commitment of the EU to the observance of international refugee and human rights law, the asylum regime that may be established at EU level may in practice result in a serious undermining of the internationally agreed regime for the protection of refugees, as it is shown in the chart below:

Amnesty International calls on the EU to ensure that any asylum system established at EU level does ensure access of refugees to its territory and to fair and satisfactory asylum procedures which guarantee the full and inclusive application of the UN Refugee Convention and of other international human rights treaties.

Amnesty International is aware of the legal framework provided by the Treaties to develop EC legislation in the field of asylum. This legal framework limits EC action to minimum standards, voted by unanimity by the Council, and has to take account of the principles that rule all spheres of EC Law activity. However, minimum standards in the field of asylum must be at least those currently provided by international law, and no lower than those.

Indeed, an essential element of the legal framework in which the EU institutions are to operate is provided by Article 6 of the Treaty on European Union. In this regard, Amnesty International recalls that under Article 6 of TEU, there is a legal obligation for the Union to "respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms […] as general principles of Community law". Furthermore, the Charter of Fundamental Rights of the European Union states in its preamble that it reaffirms the rights as they result, in particular, from "the constitutional traditions and international obligations common to the Member States […] and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights". The right to asylum, as well as the prohibition of refoulement are enshrined in the EU Charter.

Measures on asylum must be in accordance with the UN Refugee Convention and its Protocol, as well as with other relevant treaties, as provided by Article 63(1) of the Treaty on the Establishment of the European Community (TEC).

In October 1999, the European Council in Tampere agreed on the guidelines to inspire any future EU work on asylum. The European Council reaffirmed that common asylum policies "must be based on principles which […] offer guarantees to those who seek protection in or access to the European Union" (conclusion 3). The European Council also reaffirmed "the importance the Union and Member States attach to absolute respect of the right to seek asylum" and "agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement" (conclusion 13).

Amnesty International calls on the EU and its Member States to ensure that EU measures in the field of asylum and migration do comply with international refugee and human rights law, as the adoption of proposals against the established interpretation of international refugee and human rights law, constitutes a breach of international and Community law.

Amnesty International recalls that a true commitment to refugee protection requires concrete and proper action to fight human rights violations in countries of origin, which cause people to flee and seek refuge elsewhere. Refugee crises cannot be resolved unless the underlying human rights issues are addressed. The main thrust of Amnesty International’s work is to combat the human rights abuses that force so many people to flee their homes in terror. Amnesty International also believes that many armed conflicts that cause refugees to flee are fuelled by outside powers that supply arms, personnel and expertise to protagonists known to disregard human rights.

In this context, the activities of the High Level Working Group on Asylum and Migration (HLWG) are a matter of concern. Amnesty International has already stated before that despite the expressed wish to provide for a comprehensive approach to asylum and migration, the Action Plans have not provided for a strategy to address effectively human rights violations. In fact, their implementation has not ensured, at least for the time being, a comprehensive, effective action to address and prevent human rights violations. Even more, some of the activities of the European Union in relation to third countries raise serious issues in the field of human rights protection. For instance, despite the adoption of the Code of Conduct on Arms Exports in 1998, the European Union has not yet put in place a system that prevents effectively that military and security transfers from Member States to third countries, including those addressed by the HLWG, contribute to human rights violations world-wide.

Amnesty International calls for a comprehensive European Union approach in the field of human rights that places human rights at the heart of the European Union’s policies and contributes to the fight for human rights protection world-wide. This includes not only initiatives in third countries, but also the human rights protection of refugees within its territory. In any case, the implementation of policies to fight human rights violations should never be used to legitimise a restrictive asylum policy.

Amnesty International calls on the EU and its Member States to ensure that the following principles are expressly enshrined in any future Common European asylum system:

• If a harmonisation process is to be undertaken at EU level, it must be in compliance with international law and standards, not only from a formal point of view but most importantly in substance. Measures in the field of asylum must respect fully the international obligations of Member States under international refugee and human rights law.
• An EU asylum system should include the full range of refugee and human rights treaties in determining who is entitled to protection. Assessment of claims should be based on international and regional refugee and human rights instruments.

• A Common European asylum system should include measures to combat human rights abuses that force people to flee and seek refuge elsewhere.
• In this regard, the organisation calls on the EU to end transfers of equipment and training for military, security or police forces that are used to commit or facilitate human rights violations.

• An EU asylum system should ensure that any restrictive measures on entry, such as visa controls, carrier sanctions or interdictive border controls, do not in effect prevent asylum seekers obtaining access to their territory or to asylum procedures.
• An EU asylum system should provide all refugees without exception with a fair and satisfactory asylum procedure.

• An EU asylum system should ensure that the principle of non-refoulement is scrupulously observed, in application of the Geneva Convention and other human rights instruments, and regardless of whether an asylum-seeker has been formally granted refugee status.
• Amnesty International opposes the return of anyone to a situation where they may be at risk of serious human rights violations, such as extra-judicial execution, "disappearance", torture, the death penalty, unfair trial or imprisonment as a prisoner of conscience.

• Any Common European Asylum System must ensure effective and durable protection to all refugees, for as long as they continue to be at risk of human rights violations in the country they have fled.

• Sometimes States resort to overly restrictive interpretations of the refugee definition which result in the reject of refugees, such as considering that human rights violations in civil wars do not constitute persecution; persecution other than by the state does not give raise to refugee status; the lack of persecution in the past prevents having a well-founded fear of persecution in the future; or that torture and ill-treatment are illegal acts of violence by individual officials, rather than State persecution. Amnesty International calls on the EU to apply the UN Refugee Convention in a full and inclusive manner, thus ensuring protection to all refugees.

• All States should share equitably the responsibility for hosting refugees and funding their support. "Responsibility sharing" should not be used to prevent refugees from seeking asylum in the country of their choice or to limit protection to the region of origin.

• States should comply with their reporting obligations under the UN Refugee Convention. UNHCR should submit these reports to the UN General Assembly annually.
• An independent, impartial mechanism should be established to monitor the compliance of States Parties to the UN Refugee Convention and its 1967 Protocol.