Update on EU asylum matters
November- December 1999
As requested by the Tampere Summit , the Commission is preparing a scoreboard to list the various legislative initiatives it has to prepare in order to develop the area of freedom, security and justice, as well as the timing of submission to Council and Parliament and of adoption by Council. As regards the asylum-related initiatives, these follow the provisions of Article 63 of the Amsterdam Treaty and the elements of the common asylum system as identified in the Tampere Summit Conclusions. The Commission expects to prepare most if not all of the asylum proposals. The scoreboard is based on the deadlines set by the Amsterdam Treaty (five year period), the 1998 Vienna Action Plan (short- and medium-term priorities) and the Tampere Council Conclusions (for instance regarding a Commission Communication on a common asylum procedure and a uniform status for those who are granted asylum by end 2000 — Tampere Conclusion no. 15). A full European Council debate assessing progress in developing the area of freedom, security and justice should take place at the end of the Belgian Presidency in 2001.
Following a tour des capitals which Commissioner Vitorino plans to undertake between mid- January and end of February, during which he intends to discuss Member States’ views on the scoreboard, the Justice and Home Affairs Council scheduled for 27 March is expected to adopt the scoreboard. UNHCR will also be consulted by the Commissioner, as well as the European Parliament. The scoreboard method has been used successfully in implementing the White Paper for the Internal Market. However, while the Commission had the sole right of initiative for legislation on Internal Market matters, it has to share this right with Member States in the are of Justice and Home Affairs. This may delay or complicate progress in developing the area of freedom, security and justice.
EURODAC: the JHA Council of 2 December reached political agreement on the draft EURODAC Regulation with the exception of its provisions on the territorial scope of the instrument as a result of the ongoing dispute between the UK and Spain on the applicability of this and five other draft legal instruments in Gibraltar (including a draft negotiation mandate on a Dublin parallel agreement with Norway and Iceland, and a draft decision concerning the UK application to participate in some elements of the Schengen acquis). The EURODAC system will be applicable also in the UK and Ireland as they have notified their with to take part in it, but not in Denmark which has no possibility to join up to individual instruments in the area of asylum and migration which are not related to Schengen (unless it concludes a separate agreement with the EC which Denmark is expected to do) In approving the draft Regulation, the Council amended the proposed implementing arrangements, which has resulted in a new round of consultations with the European Parliament.
Family reunification: The JHA Council had a first exchange on the draft Directive on admission for the purposes of family reunification, aimed at providing a full and balanced set of rules to offer protection for the family life of third country nationals. The draft Directive includes a number of positive proposals taking account of the specific situation of refugees and persons benefiting from complementary forms of protection. In their initial comments, Member States welcomed the general thrust of the proposal, although some concerns were voiced regarding proposals related to same-sex couples and exemptions of some obligations for refugees.
Schengen: Ministers provisionally agreed that Greece would become a full member of the Schengen free-movement zone from 1 January 2000. From that date, frontier controls at Greek ports will be lifted for journeys to and from the other EU Member States which apply the Schengen agreement in full. Border controls at Greek airports will be lifted on 26 March 2000. The UK’s bid to become a partial member of Schengen was less successful, following the Spanish opposition to extending the territorial scope of this and other instruments and common policies to Gibraltar.
Dublin parallel agreement: the conclusion of such an agreement with Norway and Iceland, imperative in order to implement the abolition of frontier checks with the Nordic countries, expected for the second half of 2000, was also blocked because of the Spanish veto on the extension of the territorial scope to Gibraltar.
Dublin Convention: Member States continue to experience difficulties in implementing the mechanism for technical and political reasons. Decision-taking on assuming responsibility and transfer mechanisms are still too slow, but following a number of court rulings in the UK, the basic philosophy of having mutual trust in the quality of Member States’ refugee status determination procedures is under discussion at present. The issue has now also been brought to the European Court in Strasbourg (a Dublin transfer of a Sri Lankan Tamil from the UK to Germany, blocked by the UK court in view of differences in application of material asylum law between the two Member States). The Commission is a working document to be issued in Spring 2000, outlining the main orientations for the revision of the existing Convention in an EC law instrument. The Commission and Member States also intend to undertake an evaluation of the implementation of the present Convention, yet arrangements for such an exercise have not yet been made. Still on the subject of Dublin, the JHA Council reached agreement to extend the mechanism to Norway and Iceland by way of a parallel agreement, subject to the lifting of a veto by Spain disputing the applicability of the mechanism to the territory of Gibraltar.
Asylum procedures: preparations for the draft Directive are expected to take off in early 2000, but according to the latest information, a Commission proposal may not see the day of light before mid 2000. In the meantime, Member States have commented in writing to the Commission working document of March 1999. Some preliminary conclusions regarding convergence of views between Member States can be drawn from these comments. Member States favour gradual harmonization and are not yet ready to adopt a prescriptive approach requiring application of a uniform procedure throughout the EU; the majority of Member States would opt to bring determination of applications for complementary forms of protection within a single procedure; Member States want to maintain notions such as "manifestly unfounded" claims, "safe third country", as well as accelerated procedures; Member States want streamlining and speeding up of procedures, particularly as regards the review and appeal stages (yet disagree over the use of time limits and their legal consequences). There is considerable confusion between Member States concerning the use of admissibility procedures and accelerated procedures determining the substance of the application. There is also disagreement over the necessity to apply the "safe country of origin" notion, or the desirability of special procedures and arrangements for groups with particular needs. A considerable amount of controversy exists regarding the need to harmonize standards of proof. These differences do not augur well for a speedy conclusion of negotiations on the future draft Directive.
Subsidiary forms of protection: in a rare development, the Finnish Presidency produced a discussion document for the Group Asylum (which only met twice, in July and early September) on subsidiary forms of protection in mid-November. The document does not include anything new in addition to previous documents submitted in 1997 and 1998. It raises certain questions as regards beneficiaries of a future EU instrument, their status and rights (particularly to family reunion, access to the labour market and social benefits) and procedural arrangements (a single procedure, or different ones for persons seeking protection on the basis of the 1951 Convention or complementary human rights instruments). The Commission has made it clear that it will not start drafting an EU law instrument on subsidiary forms of protection prior to common agreement on the scope and application of the refugee definition contained in the 1951 Convention. The latter is not foreseen in the short term.
Temporary protection/ burden-sharing: the Commission is considering the timing of a new initiative on this issue, following the failed attempts to establish a co-ordinated approach in 1997 and 1998. The Amsterdam Treaty refers to the adoption of minimum standards for giving temporary protection, yet it is not agreed whether these should be prescribed by a EU proposal in full, or whether national regimes can maintain a certain flexibility. Also, there need to be a review of the definition of "mass influx" , the duration, the role of UNHCR, and most importantly of the relationship to the 1951 Convention. It is not expected that the Commission will come forward with a new proposal early in 2000, also because the notion of burden-sharing, to be included in the initiative, remains the subject of much controversy. Commissioner Vitorino will make the issue of temporary protection/burden-sharing one of his main talking points during his tour des capitals, hoping to obtain sufficient political support for an early Commission initiative.
In line with the consultative approach taken by the HLWG during the preparations of the various Action Plans earlier in the year, the HLWG decided to continue co-operation with international organisations and NGOs during the implementation phase of the Action Plans. UNHCR, together with ICRC, IOM, and NGOs such as ECRE, Amnesty International and MSF, were invited to "informal expert" meetings organized by the EU Commission and attended by EU Member States to collect information and exchange views on existing and planned activities which can contribute to the realisation of the various measures included in the Action Plans. UNHCR and NGOs emphasized the need for balance in implementing the protection-oriented and control-driven elements of the Plans, as well as the need for strengthening the protection dimension of specific programmes in the region or the country of origin.
The HLWG is finalizing its interim report on Albania and FRY/Kosovo- the final version of the Plan will be submitted to the Stability Pact and the EU Commission which is developing a comprehensive strategy on the Western Balkans.
The next meeting of the full HWLG is scheduled for early February.
Following the entry into force of the Amsterdam Treaty, the EU should adopt binding instruments facilitating the return of illegal immigrants, and the conclusion of readmission agreements between the EU and third countries may be instrumental in this process. The Community’s responsibility with regard to the conclusion of readmission agreements is not exclusive and Member States are entitled to continue to conclude such agreements provided the Community has not already done so with the third country concerned, or obtained a mandate to do so. The incoming Portuguese Presidency has made it a priority to adopt a standard formula for such an EU readmission agreement, and is expected to draw inspiration from the 1994 EU model for bilateral agreements. UNHCR and NGOs must ensure that such a standard model includes the necessary safeguards to address the needs of asylum-seekers whose claims have not been heard and who will be returned under such agreements.
Also, the JHA Council of 2 December adopted a decision "codifying" the existing language of readmission clauses which since 1995 are included in Community cooperation and partnership agreements with third countries (or cooperation agreements between the EC, Member States and third countries — so-called "mixed" agreements). These clauses envisage the readmission of nationals and third-country nationals residing illegally on the territory of one of the contracting parties, and asylum-seekers who are prevented from lodging their application are included in this category. However, the standard clauses do not provide for their particular situation.
The Finnish Presidency also published a proposal for a Council Regulation determining Member States’ obligations for the readmission of illegal immigrants between themselves. The proposal allocates responsibility on the basis of "Dublin-type" criteria. The proposal, whose future is uncertain, does not include references to Member States’ obligations with regard to asylum-seekers whose claims have not yet been heard, nor does it include guarantees to ensure access to the asylum procedure in the readmitting Member State. It is apparently taken for granted that the subjects of this draft Regulation are determined to have no protection needs.
On 14 December, the EU Commission published its proposal for a European Refugee Fund, by submitting to the Council and the European Parliament a draft a legal base outlining the objectives, beneficiary projects, cooperation with authorities, NGOs, international organisations and the management and decision-taking structures. The initiative has its Treaty basis in the burden-sharing provision of Article 63, thereby stipulating that establishment of the fund is mainly aimed at achieving a balance in Member States’ efforts to admit and host asylum-seekers and refugees, so as to reduce secondary movements, improving the reception conditions, as well as social and legal counselling arrangements in Member States, and supporting Member States in repatriating refugees, temporary protected persons and rejected cases on a voluntary basis. The Fund mainly regroups the existing budget lines on refugee integration, admission/reception of asylum-seekers, and voluntary return of temporary protected persons and failed asylum-seekers. Member States will be given a lump sum each year, according to a distribution key based mainly on the numbers of asylum applications and refugees residing on their territory on average during the last three years. Member States have to establish their own management structures for implementing projects, which they have to co-fund. Member States also have to submit to the Commission their proposals for using the Community money, as well as for co-operation and co-ordination with partners in implementing projects.
The Fund is aimed at supporting structural projects; emergency situations (as the Kosovo crisis in 1999) are to be addressed from a reserve fund. The Commission intends to draw up a set of implementing guidelines for Member States in managing the funds provided.
In late November, the Commission adopted a package of measures to combat discrimination on grounds of race, religion, age or sexual orientation, based on Article 13 of the Amsterdam Treaty. The package comprises a Communication and three proposals aimed at strengthening national legislation and practice and fill the gaps made evident in this field during consultations held with Member States and civil society during the last years. Now that the Amsterdam Treaty provides the EU with a legal base to legislate on racism and discrimination in an extended number of areas, the Commission has introduced this package to complete existing Community initiatives and to empower citizens to seek judicial redress at EU level if and when appropriate. The package includes the following three proposals:
In a first response, the European Parliament welcomed the Commission’s long awaited initiative yet expressed some scepticism about the exclusion of gender discrimination from both directives and the action programme. MEPs also pointed to significant loopholes as a result of the Commission’s decision to present one directive covering all types of discrimination but only in employment, and another one meant to combat discrimination in all areas of society, but only on the grounds of racial or ethnic origin. The package of measures is of interest inter alia in as far as it can reinforce the protection of refugees in their efforts to integrate in EU host societies, as well as the position of asylum-seekers confronted with discriminatory practices and policies.
In a separate development, the Vienna-based EU Monitoring Centre on Racism and Xenophobia published its 1998 Annual Report in late November. The report documents Member States’ initiatives at legal and administrative level to combat racism and xenophobia, as well as the alarming high level of racist incidents in a number of Member States.
On 27 October, the European Parliament adopted a resolution commenting on the results of the Tampere Summit. Parliament largely welcomes the results of the Summit; in the area of asylum and migration, Parliament welcomes the reaffirmation by the Summit of the absolute respect for the right to seek asylum based on the full and inclusive application of the 1951 Convention, yet regrets that the Summit could not agree on a single asylum system with uniform status for refugees - but only on development of common standards. Parliament also regrets the lack of agreement to move quickly on the establishment of a coordinated approach to temporary protection based on physical burden-sharing and financial solidarity between Member States. As regards the continuation of the mandate of the HLWG, Parliament calls for a balanced implementation of the Action Plan with full attention to measures addressing the root causes of flight and forced migration. Parliament also insist that careful language should be used so as not to muddle illegal immigrants, asylum-seekers and refugees in steeping up common action to combat illegal immigration and trafficking.
On 30 November, the European Parliament organised a public hearing on progress made in giving shape to the area of freedom, security and justice since its creation by the entry into force of the Amsterdam Treaty. Many of the speakers, among whom UNHCR, ECRE and Amnesty International, analysed the conclusions of the Tampere Summit. The hearing was also attended by a disappointingly low number of representatives of national parliaments. The results of the hearing will be laid down in a resolution which the EP is expected to adopt in early 2000 assessing progress made in JHA implementation during 1999.
The European Parliament is at present preparing two important reports: one commentary to the Commission working document on asylum procedures (which the Commission awaits before starting to draft the Directive) and one commentary on the work of the High Level Working Group on Migration and Asylum..
The 10 —11 December Helsinki Summit decided to open the process of negotiations for EU membership to the remaining five Central European and Baltic States (Bulgaria, Romania, Slovak Republic, Latvia and Lithuania) and Malta, and to grant Turkey the status of candidate country, thereby following the advice of the EU Commission in its Regular Reports submitted last October (see our October update). The "group" or "wave" approach has been abandoned, instead a flexible, multi-speed approach of "differentiation" will be taken, allowing each applicant country to prepare for future membership at its own pace. Negotiations and screening must also be complemented with demonstrable progress in the practical implementation of the EU acquis, without which accession cannot materialize.
The EU wants to be ready for enlargement by the end of 2002, yet the Helsinki Summit did not set a target date for the first accessions (going against the hopes of certain applicants such as Poland). This means that by end 2002 the EU must have the financial resources available for enlargement with a first group (basically agreed by adoption of the long-term budget included in "Agenda 2000") , its institutional reform must be operational (that is, the revised Amsterdam Treaty must have been ratified by all Member States and the European Parliament) and, of course, the accession negotiations must have been concluded with the applicant countries in question. According to this scenario, the ratification process for the first accession treaties could begin in 2003, resulting into first accessions in 2004 at the earliest. The extension of negotiations with six more applicant countries in no case means the first applicant countries have to fear delays in the negotiation process. Although Turkey has obtained the status of candidate country, this does not (yet) imply preparations for accession negotiations.
In its comments to the Helsinki Summit decisions, the European Parliament welcomed the Council’s decision to extend accession negotiations to twelve countries and "took note" of the decision to consider Turkey a candidate country for EU membership, stressing that the country is still a long way from meeting the political "Copenhagen" criteria for membership. In implementing the pre-accession strategies for each applicant county, the Parliament wants the Commission and Council to pay particular attention to i.a. strengthening the rule of law, protection of minorities and asylum and migration policy.
Following the submission by the Commission of its Regular Reports, the Council adopted the principles, priorities, intermediate objectives and conditions for the Accession Partnerships with each of the ten candidate countries of Central and Eastern Europe on 6 December . The texts of the Accession Partnerships were also approved; they have as goal to set out in detail the fields and sectors, in which, according to the EU, applicant countries must undertake extra efforts in the short- and medium-term to meet the requirements for EU membership (Copenhagen criteria). In concrete terms, the Accession Partnerships draw the practical consequences of the Regular Reports issued by the Commission earlier. As with the Regular Reports, the Accession Partnerships will be reviewed and updated on an annual basis. Each Accession Partnership stipulates a series of priority measures for the short —term (within the next year) and the medium-term. The principle of conditionality is applicable: if an objective is not met, the candidate country will be sanctioned with a reduction or interruption of part of the assistance programmes. Regarding the short-term priorities, these concern for all ten countries mainly economic restructuring and reform measures, and the need for strengthening administrative capacities to take on the EU acquis in a number of areas, including justice and home affairs. References to the need for capacity-building in asylum have been expanded, both in the Regular Reports and in the Accession Partnerships. The short-term priorities also contain political reforms for most of the ten countries, essentially regarding the situation of the Roma (Czech Republic, Slovak Republic, Bulgaria, Hungary, Romania), the protection of linguistic rights of minorities (such as the Russians in Estonia and Latvia) and the problem of the orphanages in Romania. The medium-term priorities are even more numerous and essentially concern the same fields.
UNHCR Brussels
31 December 1999