Statement by the European Council on Refugees and
Exiles (ECRE) to the Round Table on Illegal Immigration
Brussels, 30 November 2001
The European Council on Refugees and Exiles (ECRE) is
an umbrella organisation for co-operation between European non-governmental
organisations concerned with asylum seekers and refugees. ECRE campaigns on behalf of its
pan-European membership for humane and fair asylum policies. ECRE is concerned with the needs of
individuals who seek protection in Europe and as such is concerned with the
impact of carriers sanctions legislation on refugee protection.
ECRE believes that carrier sanctions legislation
threatens to undermine basic principles of refugee protection, the operation of
the asylum process, procedural guarantees of due process and international
co-operation to resolve refugee problems in full respect for the human rights
of the individuals involved. While
States have a legitimate interest in controlling irregular migration and a
right to do so through border control measures, they are in breach of their
international legal obligations towards refugees where such measures hinder the
access of refugees to countries of asylum and, as a result, to protection from
persecution.
States are legally bound by a number of international
treaties that ensure the right of persons who risk persecution to leave their
country and seek protection in another.
The right to seek asylum is enshrined in the Universal Declaration on
Human Rights and a plethora of other international treaties and agreements.[1] The right to asylum is further
guaranteed by the Charter of Fundamental Rights of the European Union. It overlaps with and complements the
right to leave any country, including one’s own which is also provided
for in international law.[2] European Union Heads of State, meeting
in Tampere in Finland in 1999, agreed that a common EU asylum policy would be
based on principles which “offer guarantees to those who seek protection
in or access to the European Union”. It further stated that “it would be in contradiction
with Europe’s traditions to deny [such] freedom to those whose
circumstances lead them justifiably to seek access to our territory.”
These rights are infringed by carrier sanctions
legislation. By requiring a
refugee to obtain proper travel documentation before embarking on a journey of
escape, governments in fact ignore the very problems which give rise to the
need for refugee protection and, in effect, they deny the possibility of asylum
to some refugees.
For many refugees any attempt to obtain the
necessary documentation to travel legally would entail an unacceptable risk to
their lives; many have to go into hiding to escape persecution; others do not
have the luxury of time. In a
report by the Medical Foundation for the Care of Victims of Torture[3]
entitled “Staying alive by accident: torture survivors from Turkey in
the UK” of the 16
clients who had been granted refugee status by the time the report was written,
only two had travelled on their own passports. Six had used false passports, while four more had no travel
documents. A person fleeing
persecution must often resort, for example, to forged passports, both to leave
the country of origin and to obtain admission elsewhere.
Governments recognised that this was true when
drafting the 1951 Refugee Convention.[4] The Refugee Convention explicitly
recognises that some refugees will have no option but to use illegal means of
entry and prohibits States from imposing penalties on refugees on account of
their illegal entry or presence.
Insofar as carrier sanctions legislation is designed to prevent
irregular or illegal entry, it is broadly inconsistent with Article 31, which
accepts that there is justification for illegal entry by refugees.
Visa requirements coupled with carrier sanctions can
prevent people, who cannot obtain documentation without putting themselves at
increased risk of persecution, from fleeing their country. The European Union
common visa list[5] adopted on
15 March 2001 fails to reflect the repeated plea of the United Nations High
Commissioner for Refugees for visas not to be imposed on countries in which
there are civil wars, generalised violence or widespread human rights abuse. It
includes, for example, countries such as Afghanistan, Sri Lanka and Iraq. A visa policy is a legitimate tool for
controlling immigration, but when it is directed against asylum seekers, it is
in flagrant contradiction with the principle of asylum and the above-mentioned
international human rights legislation.
The problem is obvious. As
mentioned above, refugees are, in many cases, unable to apply for a visa
without putting themselves at serious risk. Even where they are able to apply, whilst one can apply for
a visa for reasons of business, study or tourism, it is a well-known fact that
one cannot generally apply on the ground of a need for protection. Denying asylum seekers the means to
enter a country of asylum legally not only logically forces asylum seekers to
resort to illegal and clandestine entry, but surely results in a certain number
of persons in fear of persecution being contained inside their countries of
origin in breach of the Universal Declaration of Human Rights.
The EU visa and carrier sanctions policy not only acts
as a deterrent and barrier to potential asylum seekers, but leads to an
increasing reliance on illegal entry. Desperate people who have no legal means
of reaching sanctuary will, inevitably, look for other ways. If the objective of carriers sanctions
is to prevent illegal entry then its effectiveness must be questioned. Carrier sanctions play into the
hands of those who develop, for profit, operations to evade such controls (e.g.
false documentation, traffickers, smugglers, networks of carriers, exploitation
of persons once they reach their destination). The result is that those fleeing persecution may be forced
to rely on such smugglers, traffickers or other clandestine methods, in order
to flee.
The EU Directive on carriers sanctions was formally
adopted on 28 June 2001.[6] The prospect of fines of at least Euro
3000 introduced in the carriers sanctions Directive will have the –
intended - effect of making transport carriers more vigilant for stowaways and
passengers without proper documents. The Directive offers only the weakest of
safeguards for refugee protection.
Article 4 (2) of the Directive states that action taken under the
Directive should be “without prejudice to Member States’
obligations in cases where a third country national seeks international
protection” - little consolation to a survivor of torture who has been
refused permission to board a carrier because she is travelling on a forged
passport.
Transport carriers have been forced to take on an
immigration role due to the imposition of fines by States on carriers transporting
passengers who do not possess the necessary documentation for entry. It is impossible to be precise about
the number of refugees who are denied escape due to stringent checks by
transport companies, but clearly it represents an ever-increasing barrier.
As was stated in the 1998 report, The Cost of
Survival – The Trafficking of Refugees to the UK, everybody loses from the present
situation. “The carriers pay
liability fines and have to train their own staff as quasi-immigration
officers; the government spends many millions of pounds on an international
enforcement agenda which cannot (and should not) stop refugees from fleeing
persecution; and the refugees pay the highest price of all.”
Conclusions
-
Legislation
which has the effect, intended or otherwise, of hindering the access of
refugees both to asylum procedures and, as a result, asylum from persecution,
is clearly inconsistent with the international right of all persons to seek and
enjoy asylum from persecution.
-
Where such
legislation prevents persons with a well founded fear of persecution, for
reasons recognised as valid under international law, from making use of what
could be their only means of fleeing their country, and from reaching the
territory of asylum countries, this amounts to an unacceptable limitation on
the right to seek asylum and the complementary right to leave any country,
including one’s own.
-
Any State
which is bound by the 1951 Refugee Convention has to perform its obligations
under the Convention in good faith and in accordance with the objectives and
purposes of the Convention. An
exercise of power by the State, although legitimate on its face, which in fact
frustrates the fundamental object and purposes of the Refugee Convention
– that of protection - could well amount to a broad breach of
international obligations under the Convention.
19 November 2001